What Do I Need to Say to Be Protected as a Whistleblower?

Retaliation, Whistleblower
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If you have complained to management, the press, or a government agency about your employer’s unethical, illegal, or discriminatory acts, you may have some protection under the law as a whistleblower. Depending on the circumstances, if you suffer negative consequences because you’ve said or written such criticisms, your employer may have broken the law.

One example of this situation is the case of Beth Burns, the former women’s basketball coach for San Diego State University (SDSU). Burns won her lawsuit against the school last year. A San Diego Superior Court jury awarded her a $3.35 million judgment for whistleblower retaliation after she complained about potential Title IX violations, according to the San Diego Union-Tribune. Title IX is a federal law meant to create gender equity in education programs that receive federal funding. Burns said that she was forced to retire to protect her pension, instead of resigning or being fired.

Coach Succeeded on the Court…

Burns left SDSU in 2013 after a 27-win season. She had more wins than any coach in the history of SDSU women’s basketball, according to KNSD. While Burns was coaching, the women’s basketball team made seven NCAA tournament appearances, including a Sweet 16 appearance in 2010. Her team also had six regular season conference championships and four league tournament titles. Burns was named the Mountain West Conference Coach of the Year in 2012 and 2013.

Her 2014 complaint argued that despite her stellar coaching history, she was told that she had to leave her job. Burns said she was pressured to retire for allegedly hitting an assistant coach during a game in February 2013 against Colorado State. A video recording of the game shows Burns twice making contact with assistant coach Adam Barrett. It appears that she first hit a clipboard Barrett was holding and later hit him in the shoulder. Burns said that she didn’t strike him intentionally.

But She Complained to the School Off the Court

In her lawsuit, Burns claimed that she was actually forced out in retaliation for complaining about unfair treatment between men’s and women’s athletics at the university. Burns stated that she didn’t keep silent and that she regularly complained about the differences in the support for housing, facilities, staffing, and equipment between the men’s and women’s basketball programs. Burns alleged that SDSU forced the team to count male practice players as female participants in the university’s annual mandatory gender equity report. She also asserted that she spent thousands of dollars of her own money to support the team.

Burns’s contract was extended in July 2012 with an annual salary of $220,000. Her lawsuit alleged that she lost $880,000 in earnings and that she had been unable to get another coaching job because of the damage to her professional reputation. She was hired later as an assistant coach for the women’s basketball team at the University of Southern California for $150,000 a year.

University Claimed Coach Was Out of Control; Coach Said She Was Retaliated Against

According to the San Diego Union-Tribune, when Burns started testifying at her trial in August 2016, her statements reflected some things that whistleblowers commonly say. She stood up for what she thought was right:

I think it’s important to stand up for what you believe in… You know, it’s a lot easier to fight for other people than it is to fight for yourself. But at the end of the day, I’ve been a basketball coach my whole life. If I didn’t stand up for myself, then everything I’ve tried to impart upon [my players] for the last 25 plus years would be a farce… So here we are.

The school’s lead attorney said that Burns couldn’t control her emotions and the university believed its employees should not have to worry about being confronted by an out-of-control boss. The school also took the position that Burns’s statements were just complaints about the team and the school, not legally protected complaints about violations of federal law.

The jury partially agreed. There were a total of 12 gender equity “communications” at issue, which ranged from discussions of game-day giveaways and ticketing to equipment. One issue Burns raised was the fact that the men’s team was wearing its fifth set of new uniforms midway through the season. However, the women’s team still hadn’t gotten the travel sweatsuits they had ordered months earlier. The jury found that five of those communications were protected disclosures under the law, made in good faith. The jury also found that these communications were a factor in Burns’s de facto dismissal. A majority of the jury concluded that Burns would’ve kept her job if she hadn’t made these statements.

The resulting $3.35 million judgment included $468,500 for past economic losses, $887,750 for future losses, and another $2 million for past and future noneconomic damages.

Summing It Up

Under Title VII, the federal law that makes it illegal for employers to discriminate based on sex, race, color, and religion, employers must also not retaliate against an individual who “opposes” a practice reasonably believed to be illegal discrimination. Such opposition can include complaining or threatening to complain about the alleged discrimination.

  • As in Burns’s case, opposition can be legally protected. This is true even if the opposition is done informally or doesn’t include legal terminology. The communication or act by the employee is considered protected opposition if the facts show that the person is conveying resistance to an actual, perceived, or potential violation of antidiscrimination law.
  • The protection for employees opposing discrimination is limited to those acting with a reasonable, good faith belief that the conduct at issue is unlawful or could be unlawful if repeated.
  • Opposition also must be made in a reasonable manner. If the employee threatens violence because of the alleged practice or stalks fellow employees to convince them to support his or her opposition, it would not be protected activity.

The timing of the statements you make or the actions you take may be critical to your legal rights. Before opposing something that you fear may result in retaliation by management, call us so we can talk about what’s going on.

If you believe you’ve already been retaliated against because you’ve opposed what you believe are unethical, illegal, or discriminatory actions by your employer, contact our office. We can talk about the situation, including whether your acts and communications might be protected by the law, how the law may apply, and what your best options are to protect yourself.