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Does whistleblower policy protect whistleblower?

Does whistleblower policy protect whistleblower?

Columbia University published its Institutional Policy on Misconduct in Research in 2006.  It provides that “all reasonable and practical efforts” will be made to protect a complainant from retaliation if the person files a good faith complaint about fabrication or falsification in research.  In 2014, the University also adopted a “Non-Retaliation Policy” to prohibit retaliation against individuals who report possible ethical or compliance issues in good faith.  The policy was specifically intended “to encourage” members of the community to report their concerns.

In December 2014, an assistant professor in the Neuroanesthesia Division of the University’s Department of Anesthesiology, according to his complaint filed in federal court, became aware that articles authored by a senior faculty member contained inaccurate, falsified, or fabricated data.  He raised his concerns with the faculty member, who made no changes.  He went to the Vice-Chair for Departmental Research and others, but received no response.

Shortly thereafter, according to his complaint, his dedicated research time was reduced, while other members of the department did not face such reduction.  He was assigned less important research that others were allowed to opt-out of.  His complaint was ignored by others and he was passed over for a promotion.   When he filed an administrative complaint, that was supposed to be investigated within 60 days, no inquiry was begun for eight months, and it was not finalized for a year.  He finally sued for breach of contract and violation of the whistleblower protection policies, among other things.

The University filed a motion to dismiss.  It claimed that the policies did not constitute a contract between the University and the professor.  The Research Misconduct policy was available on the University’s website and as an appendix to the Faculty Handbook.  The website policy was linked to a disclaimer that says the Handbook is not intended to be construed as a contract between the University and the faculty member.  The stand-alone policy had no such disclaimer. 

The Non-Retaliation Policy did not contain any disclaimer language.  The University also had a “hotline” for reporting compliance concerns that did not contain any disclaimer language.

The University, nevertheless, argued that it had no contract with the professor on the non-retaliation issues because the policies could be disclaimed by the University.  Even if a contract existed, the University claimed, the professor had not adequately alleged that the University breached it because none of the adverse actions constitute retaliation under the terms of the policies.

The federal District Court for the Southern District of New York has denied the motion to dismiss.  Citing several other New York cases, the Court said that “there are disputed issues of fact with respect to the conspicuousness and clarity” of the disclaimer language and the applicability of the policies to the adverse actions alleged.  (Joshi v. The Trustees of Columbia University,  S.D. NY, No. 17-CV-4112, 5/29/18.)

You Need to Know….  This is the type of case that gives whistleblower policies a bad name.  It causes every whistleblower to question the value of a whistleblower protection policy.  If the organization can merely disclaim that the policy is part of a contract between the organization and the employee, what good is it?  How can Columbia expect to “encourage” members of the community to report their concerns if the University can ignore the policy whenever it wants to, or if it says it can retaliate just a little bit because a little bit is insufficient to invoke the policy even if the policy is effective?

For those who believe that whistleblower policies are important to the openness and transparency of the sector, the University’s motion to dismiss is a real set-back.  The professor may ultimately win this case, but why would anyone trust what the University — or any other organization — says in its policies when it can so cavalierly disavow them when invoked?

S.D. of NY

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