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Whistleblowing Checklists

The Basic Prima Facie Case:

The following elements are the basic components of most whistleblower protection claims:

1. that the plaintiff is an employee or person covered under the specific statutory or common law relied upon for action;
2. that the defendant is an employer or person covered under the specific statute or common law line of cases relied upon for the action;
3. that the plaintiff engaged in protected whistleblower activity;
4. that the defendant knew or had knowledge that the plaintiff engaged in such activity;
5. that retaliation against the employee was motivated, at least in part, by the employee engaging in protected activity;
6. that plaintiff was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions or privileges or employment; or suffered some other wrong actionable under state tort or contract theory;
7. that the plaintiff can demonstrate, by a preponderance of the evidence, that he or she would not have been subject to an adverse action in the absence of protected conduct.

Is the Activity Protected:

1. Does a statute specifically protect employees such as plaintiff? (E.g., civil servants.)
2. Does a statute specifically reach employers such as the defendant? Does the statute implicitly reach such employers or does it implicitly exclude such employers?
3. If no statute explicitly addresses the employee's actions, is there a public policy expressed in statute or the constitution or even common law that would be frustrated if the courts did not extend whistleblower protections to people in the employee?s situation?
4. Is the public policy important enough that courts should by common law (decisions in cases) recognize protection for the employee even where the legislature has not expressed itself?
5. Examples of activities Maryland courts have found to be protected include: refusing to submit a false insurance claim (Magee v. Dan Sourches Techincal Services, Inc., 137 Md. App 527 (2001), filing a workers compensation claim (Ewing v. Koppers Co., 312 Md. 45 (1998), reporting child abuse at a child care facility (Bleich v. Florence Crittendon Services, 98 Md. 123 (1999).

Proof of the Employer's Motive:

The following general categories of facts or circumstances are used to establish a reasonable inference that the discharge was motivated by the employee?s engaging in protected activity:

1. employer's hostile attitude toward the matter underlying employee's protected conduct;
2. employer's knowledge of protected conduct;
3. nature of protected conduct;
4. special conditions of employment following protected conduct and leading up to discharge;
5. reasonable basis justifying the employee's whistleblowing action;
6. previous expressions of satisfaction with work record;
7. disparate treatment of similarly situated employees;
8. termination procedure;
9. timing and procedure of discharge;
10. threats or retaliation against other employees for similar conduct;
11. high work performance ratings prior to engaging in protected activity, and low ratings or "problems" thereafter;
12. manner in which the employee was informed of his or her transfer or termination;
13. inadequate investigation of the charge against the employee;
14. discipline, transfer, or termination shortly after employee engaged in protected activity;
15. the magnitude of the alleged offense;
16. absence of previous complaints against employee;
17. differences in the way complainant and other employees were treated;
18. determination that the employee was not guilty of violating work rule charged under, and
19. charges of "disloyalty" against an employee for engaging in protected activity.

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