Fired Whistleblower's Successful Appeal May Broaden State Protection Statutes

'PEOPLE ARE THE SAME': Myron Mehlman plans to pursue a $30 million defamation suit against Mobil if his case is upheld on its next appeal. A New Jersey appellate court has upheld and doubled a $3.5 million ruling in favor of a Mobil Oil Corp. toxicologist fired after advising a Mobil subsidiary in Japan to stop selling gasoline with hazardous levels of benzene, a carcinogen. While the company appeals the decision to the state Supreme Court, observers are speculating that the case may help whistleblowers enjoy greater protection from retaliation. Myron Mehlman was dismissed from his job at a Mobil laboratory in Hopewell, N.J., almost immediately upon returning from Japan in October 1989. He sued the company under New Jersey's Conscientious Employee Protection Act (CEPA), and a state Superior Court jury awarded him nearly $3.5 million in compensatory damages and $3.5 million in punitive damages (F. Hoke, The Scientist, Aug. 22, 1994, page 1). But the trial judge, reluctant to apply CEPA beyond New Jersey borders, threw out the compensatory damages while allowing the punitive damages to stand. Both sides appealed the split decision (S. Sternberg, The Scientist, Jan. 8, 1996, page 1). Mobil argued that Mehlman was fired because he had misused company resources for his private scientific publishing company. Mehlman sought reinstatement of both the jury's original judgment and his right to file a defamation claim. In a 56-page decision handed down in June, the Superior Court's Appellate Division ruled for Mehlman. "Mehlman identified a clear mandate of public policy which he reasonably believed that Mobil had violated when he objected in September 1989 to the distribution in Japan of gasoline with an excessive benzene content by Mobil subsidiary MSKK," the court wrote. ". . . Mobil may not terminate Mehlman's New Jersey employment in retaliation for his protesting the level of benzene that Mobil permits in its Japanese gasoline." Mehlman tells The Scientist that he expected to be vindicated. "After a while, the jury looked at the facts, and the judge clearly stated that their conduct was outrageous," he states. "Not only did I disprove what they said, I overwhelmingly disproved [it] by presenting documents. That's part of the court record." Mobil has appealed the ruling to the New Jersey Supreme Court. Aside from confirming the appeal, the company has little comment on the case. "We do not agree with the court's opinion," says Mobil spokeswoman Gail Campbell Woolley. "We believe the court incorrectly applied the relevant law." Mehlman, now an adjunct professor of environmental and community medicine at Robert Wood Johnson Medical School in Piscataway, N.J., fully anticipates winning at the state Supreme Court level. Should that happen, he declares, he will press on with his defamation suit against Mobil, and will seek $30 million. "Corporations can't do one thing in one place and another in another place," he says. "People are the same. If you expose people in China or in Japan or in Europe [to benzene] and there is no protection, then the other companies can come here and do the same. They must act ethically because there is no reason to be so greedy or act improper." The implications of his case, Mehlman believes, are "far-reaching. I'm not an attorney, but I see what happened as a clear, undisputable, established precedent that individuals working for industry, when they see something wrong being done, against the law and improper, have a recourse. It's not an easy thing, but if their conscience bothers them, they will be protected." DETERRENT: High-profile cases warn employers of the dangers of firing whistleblowers, states Thomas Devine. Thomas Devine, legal director of the Washington, D.C.-based Government Accountability Project, which assists whistleblowers, believes the effect will be greater on the companies than on their watchdogs. He describes the "deterrent impact" of multimillion-dollar decisions on employers as "indispensable." "The most significance from these types of legal victories is to prevent further retaliation," Devine states. "Generally it doesn't have a whole lot of impact on whether whistleblowers will stick their necks out or not. They realistically operate from the premise that winning a damage suit is a long shot at best. "It's different for employers, though. If only one out of 100 whistleblowers prevails, that can still be an unacceptable risk for a company to take," he points out, "because that one loss could produce disastrous publicity and loss of investor or market confidence, as well as spark derivative suits by shareholders who may be upset by the same issues as the whistleblowers." If Mehlman's case continues to be upheld, it will provide high-profile evidence of greater whistleblower protection. But whether that will entice other potential whistleblowers to step forward is a subject of debate among observers and experts. DON'T KILL THE MESSENGER: More protection for watchdogs is needed, argues Robert Sprague. Robert Sprague, a professor of psychology, special education, and kinesiology at the University of Illinois' medical school, believes the Mehlman decision is likely to inspire whistleblowers. Sprague himself once turned in a colleague who went on to plead guilty to two charges of filing false reports. He notes that the history of whistleblowing shows a need for security. "Since the time of the ancient kings, companies and governments like to kill the messenger of bad news," he observes. ". . . I would assume that if cases like this are upheld, they would be encouraging people to come forward with cases of severe activities endangering the health of people, as in this case." MORAL COMPULSION: The decision to blow the whistle is not driven by financial gain, says Marcia Miceli. Marcia P. Miceli, a professor of human resources at Ohio State University and coauthor of Blowing the Whistle (New York, Lexington Books, 1992), contends that the decision would help at least a subgroup of would-be whistleblowers. "This is encouraging to other people with valid cases, because the costs of pursuing a case are so high that if they believe the chances of losing are high, they may be inclined to not blow the whistle in the first place or take their losses and go here," she says. "In neither case does the public benefit." Although Miceli and others believe the case generally is a good thing, they argue that it will not necessarily impel others to step forward. The decision to blow the whistle, they contend, is rooted deeply in the conscience and typically is not swayed by external factors. "There are whistleblowers who, if they feel very strongly that they are right about something, are almost oblivious to the kinds of signals that might dissuade somebody from acting," Miceli states. "They are acting because they feel morally compelled to report wrongdoing. "The major factor that seems to make a difference to most people is whether they can correct wrongdoing. That's a bigger factor than retaliation," she adds. "This kind of case is helpful, period. But it's most helpful for a certain subgroup of people that are more rational and are going to be weighing costs and benefits. For most people, legal protection from retaliation is less important than believing that if they do report wrongdoing, it'll be corrected." Myron Mehlman: "Individuals working for industry, when they see something wrong being done, against the law and improper, have a recourse. It's not an easy thing, but if their conscience bothers them, they will be protected. Concurring is Myron Peretz Glazer, a professor of sociology at Smith College in Northampton, Mass., and coauthor of The Whistleblowers (New York, Basic Books, 1989), which details a six-year study of 64 people who brought charges of misdeeds against coworkers and employers. "In our book we have a last chapter called 'The Fight Goes On,' in which we ask whistleblowers that we studied, 'Would you do it again?'" Glazer reports. "Most of the people who answered indicated that despite the difficulties, they would do it again. They felt they lived up to their ethical standards and image of themselves." In addition, says Glazer, whistleblowers often contend with the conflict between being the underdog who fights for a cause despite the obstacles-as popularly portrayed by Hollywood-and the need to keep a job in tough times. Glazer cites real-life whistleblowers Frank Serpico and Karen Silkwood, and Gary Cooper's High Noon character, fighting the evildoers despite the desertion of colleagues and townspeople. "Films are made about these people who stand up for their convictions," he says. "On the other hand, I think there is no doubt that there is a major tension in our society between that cultural definition and the realities of organizational life. The main message out there is 'Don't bring bad news to your boss.' People high up don't want to hear it. That's been confirmed in our work and many other studies." The decision to risk one's job and report wrongdoing, according to Glazer, depends on "your internal makeup. How you see your ethical standards. How much you're willing to sacrifice for those standards. How much family stability you're willing to sacrifice. Basically, how much are you willing to invest for an ethical concern?" He notes that tremendous emotional, social, and financial investment is necessary to win a whistleblower case. "No victory comes easily, and it does require a long-term commitment to fight to the end. You have to judge whether you're that type of person." Listening to Mehlman talk about why he did what he did seems to confirm this. He compares the harmful policies of corporations to the Nazi atrocities of World War II. "You're working for a company, you have a responsibility to the company," Mehlman begins. "But you also have professional and personal responsibility. There's a limit. You can't have what [people] had in Germany. 'We were only following orders.' Most people did such terrible things because they were following orders. That kept coming back. There's no such thing as following orders. . . . That's why we had the Nuremberg trials." 'IMPORTANT' Mehlman's case may result in greater uniformity of laws, according to Terry Morehead Dworkin. If the decision is upheld, its legal significance will be in applying a state protection law to activities conducted in foreign lands. According to one expert familiar with whistleblowing laws, the case is important simply because this area is not yet well-defined. Terry Morehead Dworkin, the Gill Professor and chairwoman of the department of business law at Indiana University and a contributor to Miceli's book, notes that there is little uniformity in protection statutes. "This can be an important issue in the whistleblower area because whistleblower law varies from state to state in terms of their coverage and in terms of which way the courts interpret them," Dworkin explains, emphasizing that she is speaking in general terms. "Some courts are more protective than others." 'LEEWAY': Dan L. Burk feels that courts are beginning to allow some state laws to be applied overseas. There is reason to believe that in the absence of a compelling federal interest, courts will be more willing to apply state laws overseas. Dan L. Burk, an assistant professor at Seton Hall University's School of Law with an interest in scientific misconduct, contends that recent legal history points to a shying away from the long-held idea that "the United States needs to speak with one voice." "Two years ago, [the U.S. Supreme Court] indicated they weren't so wedded to that, in a case that involved California taxation," Burk recalls. "The mood at the federal level seems to give states more leeway. If there's some indication in the state legislature that they want to go outside their borders, we may see them applied more frequently, until it gets to the point where it interferes with what the federal government tries to accomplish. . . . But the atmosphere is such that I think we're going to see more of that." Dworkin explains that only about two-thirds of the states have legislation protecting whistleblowers, and the laws vary widely in whom and what they cover. "So I would think this is going to become important," she concludes. Burk agrees: "This sort of thing may become increasingly common." Common or not, will this precedent-if it stands-unleash a new tide of whistleblowers and watchdogs? Even Mehlman himself concedes that the question is "difficult to answer." He adds: "It will depend on the given individual and his conscience, to what extent he's willing to go along. At least in the back of their mind, they will know that [there is] a recourse, a strong recourse."

Fired Whistleblower's Successful Appeal May Broaden State Protection Statutes

Sep 1, 1996

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