Retaliation Against Whistleblowers and Witnesses in Federal Proceedings

While there are many specific retaliation provisions unique to claims filed under the False Claims Act, with the Equal Opportunity Commission and/or arising out of Sarbanes-Oxley provisions, all of which protect informant employees from being retaliated against by their employer, a little known fact is that there is a general statute (42 U.S.C. § 1985) which makes it unlawful for two or more persons to conspire to “deter” a witness from testifying in Federal Court. This statute also makes it unlawful to “retaliate” against a witness for having so testified. The “deterrence” provision makes it unlawful for two or more persons to conspire to deter by force, intimidation or threat, any witness in any court in the United States from testifying to any matter pending therein freely, fully and truthfully. The “retaliation” provision makes it unlawful to injure a witness on account of his having testified in a court in the United States. Conspiracy to retaliate consists of two or more people acting in concert to retaliate against a witness for having testified in a judicial proceeding and injury as a result of the conspiracy, and an nexus between the act of testifying and the conspiracy.
The typical case where this statute might apply is one where a company employee testifies against the employer in a federal proceeding and then is terminated as a result of the testimony. Even a threat to take retaliatory actions against a witness should they provide truthful testimony is actionable under this statute. Thus, if a company employee is testifying before a federal body and is “advised, counseled or warned” that should they testify unfavorably to the company they may be subject to reprisal, this would be an actionable case under this statute.

In the United States Supreme Court of Haddle v. Garrison, 525 U.S. 121, 119 S. Ct. 489, 148 L. Ed. 2d 502 (1998), (a case arising in Georgia which involved this firm) the Supreme Court held that third party interference even with an “at will” employment relationship states a claim for relief under § 1985. The Court reasoned that because “the gist of the wrong at which § 1985 is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal court proceedings,” the loss of at will employment can injure a plaintiff for purposes of the statute. Thus, even in an “at will” state such as Georgia, if an employee is intimidated by an employer in such a way as to interfere with their ability to provide testimony against the employer in a federal court context, then such a case is actionable notwithstanding the restrictions of a state “at will” employment doctrine.

In addition to recovering compensatory damages in a case where an employer is seeking to prevent an employee from testifying against its interest in a federal proceeding, the whistleblower employee may also obtain attorneys fees and costs under 42 U.S.C. § 1988. The decision to award attorneys fees is left to the sound discretion of the Trial Court but generally should be awarded to a prevailing plaintiff. Also, plaintiffs who establish a valid claim under 42 U.S.C. § 1985 are presumptively entitled to an award of punitive damages as well. Thus, in the context of a case where an employer is seeking to intimidate an employee from testifying against its corporate interest, in a federal proceeding, the whistleblower employee does have statutory rights to combat either the deterrence or retaliation for doing the right thing.