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Whistle-blower should have appealed to higher authority: Court


A worker should have gone to a higher authority, either within or outside his company, to report alleged environmental violations in order to successfully pursue his retaliatory discharge claim as a whistle-blower, says an appellate court in upholding a lower court's dismissal of the case.

Randall Lykins was employed for 12 years at the Kansas City, Kan., fiberglass plant operated by CertainTeed Corp., a unit of Saint-Gobain Corp., whose U.S. headquarters is in Valley Forge, Pa., according to Wednesday's ruling by the 10th U.S. Circuit Court of Appeals in Denver in Randall Lykins v. CertainTeedCorp; Saint-Gobain Corp.

Mr. Lykins said that from May to August 2010, he witnessed numerous employees unlawfully handling and disposing of waste materials into the municipal sewer, according to the appellate ruling. He reported these allegations to various supervisors at the firm and raised his concerns during production meetings, but he never contacted any outside environmental enforcement agency or called his company's 24-hour hotline to report his concerns. He also never read the company's waste water discharge permit and did not know how much, if any, discharge was allowed, said the ruling.

On Aug. 16, 2010, he was given a poor work performance letter that he refused to sign and was told that if he did not sign it, he would be terminated. The following day, which was also the date of a planned state environmental inspection, he was called into a meeting with plant management where “he voiced his concerns of retaliation for his complaints at the plant, after which he was fired,” according to the ruling.

Mr. Lykins filed suit in U.S. District Court in Kansas City, Mo., in March 2011, claiming retaliatory discharge for reporting his environmental concerns to upper management.


Defendants moved for summary judgment on the basis that he had failed to identify any specific laws allegedly violated and that he did not make his reports to any authority higher than the alleged wrongdoers at the plant. The District Court agreed and granted the defendants summary judgment dismissing the case.

The appellate panel agreed with the lower court. Under Kansas law, to establish a retaliatory discharge claim, the plaintiff must establish he reported the unlawful conduct to a higher authority, which means “taking actions to stop the illicit activity by reporting it to someone higher than the wrongdoer, either inside the company, if available, or outside the company, when internal channels are unavailing,” said the ruling.

“Simply reporting to a higher-level wrongdoer is insufficient,” said the appellate court. “Mr. Lykins argues that his complaints were addressed to a higher authority, not the wrongdoer, because upper management was ultimately responsible for the wrongful actions of the subordinates.

“However Mr. Lykins constantly identified the perpetrators of the wrongdoing as upper management, including in his answer to interrogatories,” said the appellate panel.

Mr. Lykins also argues that denying him whistle-blower status would be a “direct onslaught” to public policy considerations that protect citizens from reprisal when they uphold health and safety laws because it would dissuade employees from internal reporting.

“While we understand Mr. Lykins' concern,” said the ruling, to avoid “ordinary dialogue and disagreement” between management and employees from becoming the substance of whistle-blowing claims, “obviously, something more is required.”

While the three-judge panel of the 10th Circuit was unanimous on this issue, it disagreed 2-1 on the question of whether sanctions should be imposed because of alleged discovery abuses by the defendants. The majority overruled the lower court and held that sanctions were not moot despite the grant of summary judgment.