An employee who draws attention to an illegal or unethical practice within their place of employment is known as a “whistleblower”. According to employment law statutes and cases, including New Jersey’s, an employer is prohibited from firing, demoting, or otherwise retaliating against an employee for actual or threatened whistleblowing activities, as long as the worker’s motivation is protection of the public and/or the self, and the employee’s behavior is objectively reasonable under the circumstances. When the company wrongfully retaliates, the whistleblower can sue for wrongful termination, lost income, lost benefits, back pay, front pay, pain and suffering, punitive damages, and counsel fees/costs of litigation.
In a 2008 case on point, ending in September of 2016, Progenics Pharmaceuticals fired chemist Julio Perez after he issued an internal memo saying test results made available to the public were not consistent with the company’s internal research findings. Perez represented himself in the lawsuit that followed, and he won a generous jury verdict totaling just under $5 million. Despite the fact that pro se litigants often lose, Perez won his case partly because he was not a lawyer, partly because he stuck to the facts and his legal argument, and finally because the company’s chief defense lawyer angered the trial judge and aggravated the jury, all from what observers reported.
Perez did many things right when he took on Progenics, and the company did a number of things that helped them lose their case. Here is what the company did that it should not have done:
- Firing too fast — the company fired Perez just one day after he issued his memo, making it crystal clear that his memo was the trigger for the retaliation. Moreover, the company went after Perez for what was later determined to be, without question, lawfully protected activity, engendering the jury’s sympathy. This is one area in which the company had better be right, because the jury will punish whichever side – plaintiff or defense – is found to be at variance with the law of whistleblower protection.
- Taking a jury trial — the defense chose to roll the dice with a jury trial rather than settlement. This was not a good gamble for the defense, especially knowing that the defendant had been fired for engaging in a protected activity.
- Losing your temper — Perez’s boss Mark Baker made it clear that he had a personal dislike for the plaintiff, was uncooperative in answering questions, and was both combative and derisive on the stand. The jury never appreciates a defendant “losing it” in court.
- Investigating the whistleblower — instead of investigating the whistleblower’s allegations, the company immediately circled wagons and took decisive action to blame Perez, which made it look vindictive.
- Using a defense the jury doesn’t like — the defense claimed that Perez was trying for a quick jury award instead of making a sincere effort to find a job. It appeared to observers the jury instantly mistrusted that strategy. When the chances of a pro se litigant winning a case are low, why would a highly intelligent and educated chemist, who has been continuously and successfully employed for 20 years, take a huge risk like that? The weight of that argument clearly favored the plaintiff.
Initially, the jury awarded Perez $1.6 million, then the trial judge awarded him an additional $2.7 million under federal whistleblower laws, to which the trail court then added pretrial interest, yielding a sum close to $5 million — sufficient to last Perez through his retirement.
This was a tremendous win for a clearly deserving plaintiff. While a win like that is not predictive, it is surely instructive.
In our direct experience in these cases, Perez, as do many whistleblower survivors, most likely would tell you he suffered for his principles; he lost far more than he could ever recover in time, anguish, stress, and health concerns; and it is not clear he would do it again if the opportunity presented itself. Some of these cases last 10, 12, 15, or more years. You can understand that while perseverance is commendable, it also can be highly destructive of self, others, and relationships. You can ruin a marriage over cases like this. You almost certainly will become something of a pariah, co-workers will stop speaking and relating to you in many cases, and you may end up blackballed in your own industry.
This is not a path for a faint of heart, yet some people find themselves pushed to extremes. They will stand up, against the odds. Some are brave and tough (others would say foolish) enough to buck the system and keep on fighting right to the bitter end.
However, a word of caution is in order: not everyone achieves an outcome like Mr. Perez did. You can fight with all of your time and energy and out of pocket expenses – and still not prevail in court. Ouch.
If you have been a victim of unethical or illegal practices at your workplace, including discrimination, wrongful discharge, and/or retaliation, you should call the experienced employment law attorneys at Hanan M. Isaacs, P.C., at 609-683-7400, or contact us online, to schedule a near-term reduced fee initial consultation at our Central Jersey law offices in Kingston. We will listen to your facts, explain the law, evaluate your claims, and assist you in forging a path to social and economic justice that is just right for you. We are compassionate counsel and tough advocates — and we want to help. Call us today. You will be glad you did.