Self-Professed Whistleblower’s Claims Fail

A number of federal and state laws have been enacted to offer whistleblowers some degree of protection. For example, the Whistle Blower Protection Act, 5 U.S.C. §2302, protects federal employees from retaliation for reporting unlawful activity. As another example, New York state law prohibits any "retaliatory personnel action" against any employee that "discloses or threatens to disclose…an activity that is in violation of law." N.Y. Labor Law §740(2)(a).

 
But just calling oneself a “whistleblower” is insufficient to obtain relief, as indicated in a recent decision by the U.S. District Court for the Eastern District of New York, in Schultz v. Tribune Co, Inc.
 
The plaintiff in this case alleged that he was fired in 2004 by the New York area daily newspaper Newsday in retaliation for his role as a "whistleblower" with respect to a scheme whereby the newspaper reported inflated circulation figures in order to charge higher rates to advertisers. The defendants moved for summary judgment.
 
The court noted that the plaintiff’s complaint made repeated references to the plaintiff’s status as a "whistleblower.” However, the court explained, it “critically fail[ed] to allege a discrete ‘whistleblowing’ claim under either federal or state law.” Instead, the court continued, the complaint alleged claims under (1) the Family Medical Leave Act; (2) the Americans with Disabilities Act; (3) the Employee Retirement Income Security Act; and (4) the New York State Human Rights Law.
 
The court reasoned that the plaintiff had to connect his termination to his rights under the aforementioned statutes to survive summary judgment. It ruled that he failed to do so, because he “consistently and ardently maintain[ed] that his termination was in retaliation for his role as a ‘whistleblower,’ and not on account of his taking medical leave (FMLA), his disability (ADA), or his entitlement to disability benefits (ERISA).” Therefore, the court granted the motion for summary judgment.
 
The court’s decision is Schultz v. Tribune Co, Inc., 06-CV-4800 (E.D.N.Y. Oct. 7, 2009).
 
Attorneys involved in the case include Joseph O. Giaimo and Jade L. Fuller, Giaimo Associates, LLP; Cliff Fonstein and Eric G. Hoffman, Sidley Austin LLP.