Organizational Hostility toward Whistleblowers

By Yeargain, John W.; Kessler, Lara L. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2010 | Go to article overview

Organizational Hostility toward Whistleblowers


Yeargain, John W., Kessler, Lara L., Journal of Legal, Ethical and Regulatory Issues


ABSTRACT

This paper examines hostile reactions toward whistleblowers who report violations of laws, rules, or regulations. This is an inherent organizational characteristic. We punish those who tell the truth if it causes embarrassment to the organization or exposes it to punishment. Some studies have tried to determine why members of organizations react in this manner. Others have suggested that the best way to avoid embarrassment by whistleblowers is to have a strong compliance program within the organization to react positively to such reports.

INTRODUCTION

There are various methods of discouraging those who wish to report an act that is a violation of a law, a regulation, or a rule. The easiest way is to order them not to speak or make a statement. If the order is ignored the supervisor can make an example of the whistleblowers by taking adverse actions against them. These adverse actions are noted by others in similar positions as a warning not to take similar actions in the future.

RETALIATION

Lucia Paccione worked as a sales representative for Cephalon Inc., a drug manufacturer. She claimed she was fired for expressing her concerns to her immediate supervisor regarding the illegal off label marketing of drugs. Off label marketing is the selling of drugs for purposes not approved by the Food and Drug Administration (FDA). Despite the FDA's letter, sent to Cephalon in 2002, which warned the company not to continue to promote one of its drugs off label, the company continued to do so. Prosecutors contended in court papers filed against the company that it trained its sales personnel to disregard FDA restrictions and structured its sales quota and bonuses so that sales representatives could not reach their sales goals unless they sold the drugs for off label uses (Duffy, 2008) The company agreed to pay $375 million to settle False Claims Act claims by Medicaid and Medicare and pay $50 million in fines. In addition, it paid Ms. Paccione over $46 million. She in turn agreed to split the sum with three other whistleblowers (Duffy).

John Marti, the first assistant prosecutor for the U.S. Attorney in Minnesota, was demoted for reporting his boss, Rachel Paulóse, for careless handling of classified homeland security reports. In retaliation, Paulóse had Marti removed as her first assistant and demoted to Assistant U.S. Attorney. The Office of Special Counsel confirmed Paulóse' s actions and awarded Marti back pay, a lump sum payment and any negative references removed from his personnel records (Karnowski, 2008).

In 2006, the United States Supreme Court ruled that a public employee could be disciplined for doing his job. Richard Ceballos was a supervising deputy district attorney for the Los Angeles County District Attorney's Office. He had been employed there since 1989. He was a calendar deputy in the Pomona branch with some supervisory duties over other attorneys. In February 2000, a defense attorney asked him about incorrect descriptions in an affidavit used to obtain a search warrant. Ceballos claimed that it was normal for defense attorneys to ask calendar deputies to look into elements of pending cases. The defense attorney had already filed a motion to challenge the warrant.

After reviewing the affidavit and visiting the location described in the affidavit, Ceballos concluded the affidavit had made critical misrepresentations. What the affidavit described as a long driveway, Ceballos thought should have been described as a separate roadway. He also doubted the affiant's assertion that tire tracks led from a derelict truck to the premises to be searched because the surface of the roadway made it difficult to leave visible tire tracks (Garcetti, 1955).

After speaking by phone with the deputy sheriff who had applied for the warrant and not receiving an explanation with which he was comfortable, Ceballos informed his supervisors and prepared a memorandum in which he recommended dismissal of the case. …

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