The firm recently obtained summary judgment in favor of the defendant in a retaliatory discharge case in Mississippi.  The case was brought pursuant to a common law “whistleblower” exception created by the Mississipi Supreme Court in McArn v. Allied Bruce-Terminix Co. Inc., 626 So.2d 603 (1993).  This exception operates much like the increasingly popular “whisteblower” statutes which have been enacted by a number of state legislatures around the country, and creates a cause of action for retaliatory discharge, even where the employee-plaintiff was an at-will employee.

In order to prevail on a “whistleblower” retaliatory discharge claim, the plaintiff must demonstrate that he or she reported some illegal conduct, and was later discharged for doing so.  As in an employment discrimination case, the employer then must establish a legitimate reason for discharging the plaintiff, which was unassociated with the alleged “whistle blowing.”  Should the employer be successful in doing so, the plaintiff must then establish that the stated legitimate reason for discharge is mere pretext.

In analyzing this typical burden shifting procedure, one burden imposed upon the plaintiff may easily be overlooked, and proved critical in the successful defense of this matter by the firm.  Indeed, unlike a typical age discrimination in employment case, where the plaintiff need only show that he applied for a job, did not obtain that job, and it was later granted to someone of a different age group, the plaintiff in this “whistleblower” case was required to demonstrate that the conduct which was supposedly reported was illegal.  That is, the conduct would subject the employer to criminal penalties.

Moreover, the would-be “whistleblower” plaintiff in this litigation was required to establish this illegal conduct by specifying both what conduct was reported and the law that renders such conduct illegal and would subject the employer to criminal penalties.  In short, a failure to establish that the conduct reported was in fact illegal is sufficient to result in the dismissal of a “whistleblower” lawsuit.

In the firm’s recent success, this very issue and the firm’s focus on it in discovery proved critical because the Court found, among other things, that plaintiff had failed to demonstrate that any specific conduct alleged fell within a specific statute that would have subjected the employer to criminal penalties.  Rulings such as this create a clear lesson to the practitioner defending an employer from a “whistleblower” claim, that it is imperative to focus both written discovery and deposition inquiries around the issue of criminal statutes and how certain alleged conduct falls within those statutes.  Similarly, plaintiffs’ attorneys also should make certain when analyzing the merits of a “whistleblower” claim to pay close attention to the specific conduct alleged by any potential plaintiff, and ensure that there is a statute that can be identified that would subject the employer to criminal penalties.  Failure to do this can be, and is, fatal to the would-be “whistleblower’s” cause of action.

For more information please contact Christopher Renzulli.