Category: Whistleblower Retaliation

Pennsylvania Supreme Court Upholds Non-Economic Damages for Whistleblower Claims

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Recently, the Pennsylvania Supreme Court held that wrongfully terminated whistleblowers can recover non-economic damages. Bailets v. Pa. Tpk. Comm’n., 2018 Pa. LEXIS 1498 (2018). Bailets centered around a whistleblower claim made by a manager of the Pennsylvania Turnpike Commission (PTC) alleging that they fired him in retaliation for reporting wrongdoings and waste to his supervisors. The lower court found in Plaintiff’s favor and awarded economic and noneconomic damages totaling over $3 million. The Pennsylvania Supreme Court affirmed the lower court’s decision and award of economic and non-economic damages.

This issue centered on whether the term “actual damages” in Section 125 of the Whistleblower Law should be narrowly or broadly interpreted to include non-economic damages. PTC argued that actual damages refer solely to economic damages because allowance of non-economic damages would be analogous to punitive damages. PTC also argued that exceptions to the Commonwealth’s immunity should be narrowly interpreted and thus non-economic damages should not be read into “actual damages.” The employee argued that actual damages include non-economic damages because the law’s purpose is remedial and serves to compel government compliance to the law. In addition, the employee argued that there is a long precedent in Pennsylvania that actual damages are equivalent to economic and non-economic damages. Furthermore, the employee argues that not awarding non-economic damages “would undermine the very purpose of the law to protect and encourage employee reporters of waste and wrongdoing.”

The Court approached this as an issue of statutory interpretation and held that the law must be liberally construed to allow non-economic damages, thus fulfilling the remedial purpose of the Whistleblower Law. Furthermore, the Court found that reading “actual damages” as solely economic damages would be superfluous considering the statute’s inclusion of different types of economic damages under the allowed types of recovery. The Court agreed with the employee that Pennsylvania’s precedence historically supports the finding that actual damages includes non-economic damages. The Court stressed that the state must allow recovery for non-economic harms such as humiliation, embarrassment, and mental anguish in order to make Plaintiff whole.. Going forward, Bailets is significant in that it will open the door for more claims under the Whistleblower Law and allow for a greater recovery for successful claimants.

For more information, please call our Philadelphia whistleblower lawyers at the Law Offices of Sidkoff Pincus & Green at 215-574-0600 or submit an online inquiry.

Third Circuit Affirms District Court in EMTALA Whistleblower Appeal

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On June 12, 2018 the United States Court of Appeals for the Third Circuit found that a fired nurse was not protected under the Emergency Treatment and Active Labor Act (“EMTALA”) whistleblower provision because she did not actually “report” a violation. Gillispie v. Regionalcare Hospital Partners, Inc., No.16-4307 (3rd Cir. 2018). The appellant in the case was the nurse on duty when a pregnant patient reported to the emergency room with complaints of vaginal bleeding and discomfort. After examining the distressed woman the hospital personnel discharged her to go directly to a gynecologist. The hospital did not transport the distressed woman nor were they able to contact the gynecologist to confirm she arrived. The hospital organized several conference calls and meetings to discuss whether the distressed woman’s discharge violated the EMTALA.

The EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exits. If the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to discharge or transfer him or her elsewhere. A hospital that either (1) fails to properly screen a patient or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA. Moreover, EMTALA’s whistleblower provision protects only employees who have “reported a violation” of one of the statutes provisions.

The appellant contends that during the meetings regarding the possible EMTALA violation, she insisted that the hospital report the circumstances surrounding the distressed woman’s discharge to the PA Department of Health or PA Patient Safety Authority. According to appellant, everyone in the meeting agreed that the hospital’s discharge failed to comply with EMTALA. Nevertheless, over the objections by appellant, no one at the hospital reported the discharge to any regulatory authority or agency.

The Court first pointed out that “in the absence of direct evidence of retaliation, courts have applied the McDonnell Douglas burden –shifting framework to whistleblower claims under EMTALA . . . Although [the Court] has not yet specifically decided if we should apply that framework to resolve EMTALA claims, we found that if a statute does not provide for a burden shifting scheme, McDonnell Douglas applies.” Therefore, the court set forth that the McDonnell Douglas burden shifting scheme will be utilized when analyzing EMTALA claims. Accordingly, Appellant had the burden to establish that (1) she engaged in conduct that is protected by EMTALA (2) her employer subsequently took an adverse employment action against her and (3) the employer did so because she engaged in protected activity.

The Court found that Appellant had not established a prima facie case because she had not “made a report” as that term is considered under EMTALA. Report was defined as “something that gives information” or “a notification”. The Court said that “it is clear that [Appellant] failed to establish that she actually provided any information of an alleged EMTALA violation to anyone”. Rather, Appellants own deposition shows that her efforts occurred after the CEO of the hospital and other attendees concluded the discharge was a violation. That testimony was “fatal” to her attempt to claim protection under the whistleblower provision because she did not “make a report” under EMTALA.

For more information, please call our Philadelphia whistleblower lawyers at the Law Office of Sidkoff Pincus & Green at 215-574-0600 or contact us online.

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PA Supreme Court Upholds Non-Economic Damages for Whistleblowers

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Recently, the Pennsylvania Supreme Court held that wrongfully terminated whistleblowers can recover non-economic damages. Bailets v. Pa. Tpk. Comm’n., 2018 Pa. LEXIS 1498 (2018). Bailets centered around a whistleblower claim made by a manager of the Pennsylvania Turnpike Commission (PTC) alleging that they fired him in retaliation for reporting wrongdoings and waste to his supervisors. The lower court found in Plaintiff’s favor and awarded economic and noneconomic damages totaling over $3 million. The Pennsylvania Supreme Court affirmed the lower court’s decision and award of economic and non-economic damages.

This issue centered on whether the term “actual damages” in Section 125 of the Whistleblower Law should be narrowly or broadly interpreted to include non-economic damages. PTC argued that actual damages refer solely to economic damages because allowance of non-economic damages would be analogous to punitive damages. PTC also argued that exceptions to the Commonwealth’s immunity should be narrowly interpreted and thus non-economic damages should not be read into “actual damages.” The employee argued that actual damages include non-economic damages because the law’s purpose is remedial and serves to compel government compliance to the law. In addition, the employee argued that there is a long precedent in Pennsylvania that actual damages are equivalent to economic and non-economic damages. Furthermore, the employee argues that not awarding non-economic damages “would undermine the very purpose of the law to protect and encourage employee reporters of waste and wrongdoing.”

The Court approached this as an issue of statutory interpretation and held that the law must be liberally construed to allow non-economic damages, thus fulfilling the remedial purpose of the Whistleblower Law. Furthermore, the Court found that reading “actual damages” as solely economic damages would be superfluous considering the statute’s inclusion of different types of economic damages under the allowed types of recovery. The Court agreed with the employee that Pennsylvania’s precedence historically supports the finding that actual damages includes non-economic damages. The Court stressed that the state must allow recovery for non-economic harms such as humiliation, embarrassment, and mental anguish in order to make Plaintiff whole. Going forward, Bailets is significant in that it will open the door for more claims under the Whistleblower Law and allow for a greater recovery for successful claimants.

For more information, please call our Philadelphia whistleblower lawyers at Sidkoff Pincus & Green at 215-574-0600 or submit an online inquiry.

Court Dismisses False Claims Against CVS

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The Third Circuit Court of Appeals has affirmed the decision to dismiss a whistleblower action against CVS Caremark. The Court found that the evidence was insufficient to prove that CVS knew Medicare Part D sponsors were intentionally submitting false information about costs to Medicare and Medicaid.

Anthony R. Spay is a former pharmacist who co-founded a company that audits pharmacies. In the whistleblower action, Spay alleged that Medicare Part D sponsors intentionally submitted false information about costs to the government during the reconciliation process. Specifically, Spay says these sponsors populated prescriber ID records with falsified IDs, which they claimed were used to replace ID data that was entered in error.  According to Spay, as a result of these falsified submissions, the government paid these sponsors more than they were entitled to.

A panel of three appellate judges ruled that the government was aware of the industry practice of using falsified IDs, yet paid the claims and never sought repayment from CVS Caremark. According to Third Circuit Judge Theodore McKee’s opinion, CVS could not be held liable for making false claims because Medicare and Medicaid were aware of the practice. Medicare Part D sponsors are companies that sell prescription plans and enter into subcontracts with pharmacies like CVS.

The Court’s decision was expressly informed by the government knowledge inference doctrine. Pursuant to this doctrine, if the government knows about the alleged misconduct, then it is already aware of the false claims and does not need assistance from private whistleblowers to identify them.  Although the Court affirmed the dismissal of the case, it disagreed with the trial court on its interpretation of that doctrine as applied to the facts at bar. The Third Circuit itself discussed the issue in depth in 1999, stating in Cantekin v. University of Pittsburgh that if the government was aware of the alleged false claims yet took no action, then any private suit was likely motivated by the sizable damages award promised to whistleblowers under the law.

However, the Third Circuit found that the doctrine was inapplicable here because CVS was unaware that the government knew about the false claims. The Court found that there was no evidence of tacit approval from the government to CVS Caremark of the stopgap industry practice.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Provide Confidential Consultations to Whistleblowers

If you have knowledge of false claims being submitted to the government, schedule a consultation with the Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. today. Our legal team represents clients in qui tam actions and whistleblower claims under the False Claims Act in Pennsylvania and New Jersey. Call us today at 215-574-0600 or contact us online to schedule a confidential consultation.

Pennsylvania Supreme Court Holds Employer Liable

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Whistleblower Case Brought by Employee

The Pennsylvania Supreme Court recognizes that an employee who brings a claim against his employer under the Pennsylvania Whistleblower Law can hold his employer liable where the employee’s good-faith report of wrongdoing resulted in a retaliatory demotion.

In O’Rourke v. Commonwealth, 566 Pa. 161 (2001), the appellant O’Rourke was employed by the appellee, Pennsylvania Department of Corrections (“Department”). During his employment, O’Rourke became aware of a scheme where thousands of pounds of meat products were being stolen from the culinary department. In response, O’Rourke filed a report regarding this activity of wrongdoing and charged various workers and supervisors with theft and mismanagement. Shortly after transmitting his report, O’Rourke began experiencing a hostile working environment and was demoted from his position at the Department.

The Court ruled that the Department failed to prove that its actions occurred for reasons separate from O’Rourke’s report of wrongdoing, and failed to rebut O’Rourke’s prima facie case. Therefore, O’Rourke was entitled to compensation pursuant to the state’s whistleblower law.

For more information, call our whistleblower lawyers in Philadelphia  at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Pennsylvania Court Upholds PHRC Ruling in Favor of Employee Who Alleged Religious Discrimination and Retaliation After Complaining About Bible Quotes on Paychecks

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In Brown Transport Corp. v. Com., Pennsylvania Human Relations Com’n, Brown petitioned the Court of Common Pleas to review an order of the Pennsylvania Human Relations Commission (“PHRC”) that granted relief to a former employee, Stephen Soffer, who asserted claims of religious discrimination, retaliation, harassment, and failure to accommodate. 578 A.2d 555, 559 (Pa. Comm. 1990). This religious discrimination included bible verses on Soffer’s paycheck and religious articles printed in the company newspaper. Soffer complained about the checks and the articles to management, but they refused to either remove the bible verse stamps on the checks or remove the religious content from the company newspaper.. At one point a manager at Brown told the Soffer that he should be grateful to be getting a paycheck at all. Id. at 556. After complaining multiple times Soffer was fired despite stellar performance reviews.  Id. at 559. The PHRC ultimately found in favor of Soffer, noting his impeccable record two months prior to his termination.  Id. at 561.

Brown petitioned the Court to overrule the PHRC based on the following: 1) the PHRC should not have permitted Soffer to add a claim under Section 5(d) of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(d), for retaliatory discharge; 2) that the PHRC’s findings of fact concerning Soffer’s allegations were unsupported by substantial evidence; 3) the PHRC erred in its application of law to the facts by concluding that Brown committed acts of retaliation and harassment against Soffer; and 4) Soffer was precluded by limitations in  in Section 959(f) of the PHRA, 43 P.S. § 959(f), from recovering any sums in the nature of either punitive or compensatory damages.

The Court ruled that Section 12(a) of the PHRA provides that provisions under the PHRA may be construed liberally, and the PHRC properly construed Soffer’s complaint to sufficiently allege discharge. Second, the Court found that Soffer provided sufficient evidence to support his allegations, and upheld the PHRC’s decision that Brown’s witnesses were non-credible as to why Soffer was fired. Third, the Court ruled that the PHRC’s findings were consistent with the evidence such that it did not err in its application of the law to the facts when ruling that Brown committed acts of retaliation and harassment against Soffer. Lastly, the Court relied on Consumer Motor Mart v. Pennsylvania Human Relations Commission, 529 A.2d 571 (Pa. Comm. 1987) to support the PHRC’s award of punitive and compensatory damages.

Philadelphia Employment Lawyers of Sidkoff, Pincus & Green P.C. Represent Clients in Employment Discrimination Matters

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys are knowledgeable in all matters related to employment discrimination. To schedule a consultation with a Philadelphia employment lawyer, call 215-574-0600 today or contact us online.

Philadelphia Whistleblower Lawyers: Whistleblower in California Receives Substantial Award

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A whistleblower at a California based life science company has been awarded nearly $8 million by the jurors hearing his case. The claimant served as general counsel at Bio-Rad when he discovered possible bribery being committed in China by senior management of the company. He duly reported the potential violations of the Federal Corrupt Practices Act (FCPA) internally to an audit committee that investigated them and concluded there had been no wrongdoing.

The investigation lasted four months after the internal memo was originally filed by the informant in February of 2013. In June that same year, the plaintiff was fired after 25 years of service at Bio-Rad. The company claimed his termination was due to his erratic work and loud outbursts, but his 2012 performance review was largely positive. No documentation of the alleged behavioral problems existed aside from a review in April 2013. The trial hinged on the plaintiff’s team using metadata to show that the review had actually been created in July, after the firing.  Attorneys for the plaintiff called the review “a despicable lie” and said it had been fabricated to justify his wrongful termination.

The jury deliberated less than three hours and unanimously found that Bio-Rad had fired the counselor in retaliation for his whistleblowing actions. He was awarded $2.9 million in back pay and stock compensation, along with $5 million in punitive damages. Because the Dodd-Frank Act doubles back pay for whistleblower retaliation, the award total will increase to nearly $11 million.

In November 2014, Bio-Rad was forced to pay $55 million in fines to settle violations of the FCPA. The Department of Justice and Securities and Exchange Commission brought criminal charges and civil claims against the company alleging improper payments were made to foreign officials in Vietnam, Thailand, and Russia. In testimony, the whistleblower said he had found documents detailing the distribution of free products to clients in China. He filed his qui tam lawsuit against Bio-Rad and its CEO charging the disclosure of his findings should have been protected under the whistleblower provision of the Sarbanes-Oxley Act of 2002. The jury agreed, awarding the man one of the highest amounts ever granted under the Act.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Defend Whistleblowers

If you suspect wrongdoing at your workplace it takes tremendous courage to step forward and blow the whistle on such conduct. There are laws to protect whistleblowers and prevent retaliation against them. The Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green are here to discuss your situation with you and provide guidance. Call 215-574-0600 or contact us online to schedule an appointment at our Philadelphia offices. We represent clients throughout Pennsylvania and South Jersey.

 

 

 

Philadelphia Whistleblower Lawyers: The False Claims Act 

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The False Claims Act is a federal law that holds people and companies liable for defrauding government programs. Pursuant to this Act, private citizens can sue those that commit fraud against the government. These cases are referred to as “qui tam” cases, because they are brought under the qui tam provision of the False Claims Act. The Act provides for treble (triple) damages, and provides whistleblowers with awards of 15 to 30 percent of the money recovered. The Department of Justice (DOJ) recently announced that 2016 was the third highest recovery year in the history of the False Claims Act.

The DOJ issued a press release stating that they obtained close to $5 billion in settlements and judgments for cases where persons or companies defrauded the federal government in 2016. More than 50 percent of these recoveries were brought under the qui tam provisions of the False Claims Act. The whistleblowers recovered a staggering $519 million in 2016 alone.

Most of the money recovered in 2016 came from the health care industry. The next common sector where recoveries were made was the financial sector, largely relating to housing and mortgage fraud. Procurement fraud, fraud associated with federal education funds, and customs fraud followed close behind.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Counsel Clients About Whistleblower Protections

Whistleblowers may be entitled to confidentiality and protection against employer retaliation. The highly-experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green can advise you of your rights, and help you determine whether you are eligible for compensation under the qui tam provisions of the False Claims Act or under other state and federal laws. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Award for Penn State Whistleblower

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Michael McQueary, a former Penn State University assistant football coach, was recently awarded an additional $5 million by a Pennsylvania judge.  Judge Thomas Gavin of Centre County, Pennsylvania found that McQueary met the state law definition of a whistleblower.  He further found that Penn State wrongfully terminated his employment in retaliation for the whistleblowing.  The court ordered that McQueary be compensated for lost wages, reputational damage, and humiliation.  Significantly, the judge stated that had Penn State publicly recognized McQueary for stepping forward, it would have helped reduce the public shame the school caused him by firing him.

During the eight seasons he served as an assistant coach at Penn State, McQueary coached wide receivers for head coach Joe Paterno.  In 2001, he allegedly witnessed retired assistant coach Sandusky sexually assaulting a young boy.  This was ten years before the scandal was brought to light and Sandusky was charged.  In 2012, Sandusky was found guilty of molesting 10 boys.  He was sentenced to 30 to 60 years in prison.

McQueary also claimed in his lawsuit that former Penn State President Graham Spanier defamed him during a 2011 public statement.  The jury awarded McQueary $7.3 million in compensatory and punitive damages as a result of the defamation and misrepresentation.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green Fight for Employees Who Stand Up to Injustice

Under the law, a whistleblower may be a person who exposes illegal or wrongful activity.  In order to encourage people to step forward to report such activity, there are certain protections in place for whistleblowers under the law.  If you suspect that your employer has retaliated against you for reporting illegal or wrongful activity, you may be entitled to compensation under the Pennsylvania Whistleblower Law or other relevant statutes.  To discuss your situation with one of the experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Whistleblower Lawyers: Enforcement Action Leads to $3.5M Award

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A whistleblower was recently awarded approximately $3.5 million by the Securities and Exchange Commission (SEC) for shining a light on wrongdoing that led to a successful enforcement action. According to the SEC – which did not name the whistleblower nor identify the wrongdoer – tips from whistleblowers have led to the recovery of $874 million in financial remedies since the SEC whistleblower program was created in 2012.

Many Americans remain unaware of the financial incentives available to conscientious employees who report their employer’s fraudulent behavior. Whistleblower protection extends to any worker who alerts government regulators to a variety of wrongdoing, including violations of the False Claims Act, the Clean Air Act, the Dodd-Frank Act, the Occupational Safety and Health Act, and many other federal statutes. A whistleblower is granted complete confidentiality by the government when the information disclosed leads to a successful enforcement action. Moreover, if monetary sanctions issued against a wrongdoer exceed $1 million, a whistleblower is entitled to an award ranging between 10 percent and 30 percent of the sanction.

Proceeding as a Whistleblower in Pennsylvania

Whistleblowers must proceed with caution and limit discussions of their concerns with coworkers. Instead, if an employee has a good faith belief that their employer has defrauded the government or consumers, they should first seek counsel from a lawyer who will ensure that whistleblower protections are in place before regulators are contacted. An employer who suspects that a member of their workforce is in talks with the SEC or other government officials may attempt to short-circuit an investigation by taking retaliatory action against a whistleblower. Fortunately, pursuant to the federal Whistleblower Protection Program, when a whistleblower’s actions lead to an enforcement action, the whistleblower is entitled to reinstatement to their previous position in addition to the aforementioned monetary award.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green, P.C. Offer Reliable, Trustworthy Representation

Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. understand the concerns of conscientious employees in their effort to shed light on wrongdoing by an employer. If you or a loved one has information relating to a potential whistleblower claim, call 215-574-0600 or contact us online to learn more about how we can help. At our Philadelphia offices, we proudly serve whistleblower clients throughout Southeastern Pennsylvania as well as South Jersey.