Articles

Whistleblower 2002
by Dr. Lynne Curry

Question:
I get the feeling it’s only a matter of time before I’m fired. I work for a medical clinic and earlier this month I witnessed a senior co-worker falsifying Medicaid records. When I asked her about this, she said, "Oh, I must have made a mistake." Then, the next week, I saw her doing the same thing and mentioned what I’d seen to the supervisor.

My supervisor got very upset and told me "Don’t try to do my job; you keep your eyes on your own work." When I saw the same "mistake" happen two days later, I decided to contact a senior manager who’d seemed friendly when I met him in the elevator. I told him what I’d seen and he seemed appreciative that I’d come forth. I asked if he could guarantee me anonymity and he said "yes."

Two days later I was called into the head manager’s office along with the supervisor above my supervisor and asked if I’d made a call to an outside regulatory agency. Although I hadn’t, they didn’t believe me because the call apparently came from a man in my department and no one else is "a troublemaker."

Now, I’m getting penalized. One of the reasons I took this job rather than another one was because the initial interviewer promised I could alter my work schedule so I could attend college classes. Two other employees leave early Tuesdays and Thursdays to attend college. But when I submitted my request last week my supervisor wrote, "denied" on it. I asked him about it and he "flexible hours is a privilege, not a right." When I said I didn’t know if I could keep the job if I couldn’t do the schooling, he said, "Well, isn’t that too bad." Do I have legal recourse? Who can I call?

Answer:
Although your supervisor may be right about an employer’s right to chose which employees receive work schedule flexibility, neither he nor anyone else in your clinic can retaliate against you for pointing out fraudulent practices. The task you face is making sure you actually saw fraud and locating someone who can protect you from illegal retaliation.

Federal laws and laws in Alaska and 23 other states protect employees who report violations of law by their employers. Further, the "anti-retaliation" provision in the federal False Claims Act gives those who expose fraud a hefty 15% to 30% of the money the government receives after it sues those who commit fraud. In fact, when one of your compatriots in Medicaid fraud discovery, salesperson Jeanne Byrne blew the whistle on her employer for submitting fraudulent Medicare claims for unnecessary blood tests, she received $9 million of the $119 million the government won from her former employer.

The specific protections available to you, according to attorney Parry Grover, include "double back pay and attorney’s fees" if you can prove that you were "discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against" because you protested your employer’s unlawful acts."

Before you let Byrne’s $9 million victory blind you to the risks, you need to realize you currently have only suspicions. Did you really see a pattern in intentional falsification or instead misinterpret a series of mistakes or justified charges? In Farnam v. Christa Ministries, employee Farnam alleged her employer committed illegal acts. When an investigation found no evidence of illegal activity, Christa Ministries fired her. Although Farnam sued under the state’s whistleblower statute, the Court ruled the statute didn’t protect employees fired for work performance problems.

In addition to proving fraud, you need to prove retaliation. If your supervisor can show he gave other employees scheduling flexibility because they earned it with tenure and quality work performance, you need to prove a casual connection between voicing your concerns and his denial. According to attorney Grover, you may be able to do this because you voiced your concerns first. Grover cites a recent Alaska Supreme Court in which the Court ruled the time proximity of an employee's disclosure to officials of an employer’s unlawful conduct and the poor treatment the employee received was enough to show the two events were causally connected and thus retaliatory.

Next, you need to decide whether this battle feels worth it to you. As you recently learned, guarantees of anonymity and support can evaporate when trouble hits the fan. While some whistleblowers win huge money awards, others lose their jobs and permanently damage their careers. As an example, a San Francisco tax accounting firm fired a controller who accused them of embezzling more than $70 in client money. Although clients later found that the millions of dollars of payroll taxes deposited with the firm had never been forwarded to the IRS, the controller was jobless for years. If you decide to tackle this, consider contacting either an attorney or the Government Accountability Project in Washington, D.C. a nonprofit organization that defends whistleblowers for allies in your battle.