Whistleblower claims of all types generally require proof of three elements; a complaint of conduct believed to be unlawful (protected activity), some form of discipline (an adverse action), and proof that the adverse action was motivated by the protected activity (causation). Oftentimes, the existence of an adverse action (such as termination) is undisputed. In whistleblower cases, the disputed issues typically relate to whether an individual engaged in protected activity and whether they can prove causation. The Pennsylvania Appellate Court, in an unpublished, non-precedential decision, recently addressed what evidence is sufficient to prove causation.
In the Pennsylvania case, David Olson sued Lehigh University alleging that he had been fired as a result of his internal complaint that the university reported inflated numbers of job postings and on-campus interviews. The trial court granted summary judgment to the University after finding that Olson did not present sufficient evidence to establish that his report resulted in his termination. The court noted that Olson did not “allege that his supervisors threatened to fire him or to impose any other adverse consequences because of his report.” The court ruled that Olson’s subjective contention that his supervisor “did not like the fact that the data was revealing inaccurate reporting, and the relationship changed after that”, and that “all of a sudden things got cold with [his] supervisor” was insufficient. The court noted that Olson’s reliance on vague and inconclusive circumstantial evidence did not constitute the concrete evidence of causation required under Pennsylvania law.
When defending or evaluating these claims, we are often faced with subjective testimony from the alleged whistleblower claiming they were treated differently after engaging in protected activity. This subjective assessment can include feeling isolated, not being engaged by team members, not receiving plum assignments and a general feeling that the plaintiff was being treated differently. The defendant’s arguments in the Olson case, while non-precedential, will be worth keeping in mind regardless of jurisdiction when defending whistleblower claims where the plaintiff asserts subjective perceptions and feelings in an effort to establish causation.
Jackson Lewis attorneys are available to further discuss investigations, whistleblower defenses and preventive strategies.