The Pennsylvania Supreme Court Issues Pro-Employee Opinion In Whistleblower Case

On August 31, 2015, the Supreme Court of Pennsylvania issued a 17 page Opinion in the matter of Bailets v. The Pennsylvania Turnpike Commission, 2015 Pa. LEXIS 1995 (2015).  In Pennsylvania, the Whistleblower Law provides protection for employees of a public employer who reported a suspected violation of state law or waste.  However, the Whistleblower Law does not apply to only public i.e. governmental employers.  The Whistleblower Law includes employers who receive money from a public body to perform work or provide services relative to the performance of work or the provision of services for the public body.  In other words, private companies who receive money from the government to perform work or provide services are likely covered by the Whistleblower Law.

In the Bailets case, according to the Opinion, Ralph Bailets was employed by the Pennsylvania Turnpike Commission from 1998 through 2008.  During this time, Bailets frequently complained, according to the documents in the case, that he observed improprieties of wasteful practices regarding a variety of Commission matters, including a computer systems contract, EZ Pass discounts, politically motivated personnel actions and the use of multiple unnecessary external investment managers.  In making these complaints, he was informed by other Turnpike employees that his job would be in jeopardy if he continued to make reports regarding these issues.  According to Bailets, he asserts that he made numerous oral and written reports regarding the business practices of the Pennsylvania Turnpike Commission.

In June 2008, he was removed from his position of Assistant Secretary Treasurer and his job title responsibilities were changed.  He was ultimately terminated by the Pennsylvania Turnpike Commission in November 2008.

After his termination, he applied for three open positions for which he was qualified.  The Turnpike Commission refused to rehire him.  The lower Commonwealth Court claimed that the decision to terminate Bailets was a management discretionary action motivated by legitimate employer objectives.  The Pennsylvania Supreme Court disagreed and determined that such a finding was, essentially, for a jury to make not for the judge.

The Turnpike Commission claimed, among other reasons, that it terminated Bailets for budgetary reasons.  The Supreme Court determined that this was an issue for the jury to decide as to whether or not Bailets was truly terminated because of budget reasons as opposed to retaliation for his reports of waste and wrongdoing at the Pennsylvania Turnpike Commission.  Waste under the whistleblower law is defined as “conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.”

In the Bailets case, the Supreme Court determined that there was sufficient facts and surrounding circumstances that Bailets’ reports of wrongdoing led to his dismissal such that the issue should be decided by a jury.  The Supreme Court pointed to evidence that Bailets had made complaints to co-workers and superiors regarding the conduct of business by the Pennsylvania Turnpike Commission and, if true, would constitute a violation of Pennsylvania’s Procurement Code.

The Supreme Court also rejected the Commonwealth Court’s assertion that the reason given by the employer was not pretextual.  A pretext in the firing of an employee essentially means that the proffered reason for termination was not truly the reason for the termination but, rather, was due to the employee’s whistleblowing activities.  For example, in the Bailets case, the Turnpike Commission claimed that it was a budgetary reason.  However, Bailets presented evidence that the revenue actually arising during the period time, other employees were given raises, and new individuals were hired to fill new positions after Bailets was terminated.

If you or a family member feel you have been unfairly treated due to whistleblowing activities or other activities at work or other workplace discrimination, contact the law firm of Carmody & Ging at 412-281-2929.