Termination after employee’s protected activity may not be unlawful retaliation
Court rules in favor of company despite employee's whistleblower protections
An employer may not be liable for unlawful retaliatory termination even if an employee previously protested suspected employer misconduct and even if the employee can further show the timing of the termination makes the motive for the employee’s dismissal suspicious. That is the lesson of a recent ruling by Oakland federal judge Araceli Martínez-Olguín in Han v. Pfizer, Inc.
Background
Frank Han worked as director of global analytics on the compliance analytics team of biopharmaceutical giant Pfizer under team lead Tara Palesh. The compliance division helps Pfizer comply with the laws of the United States and other countries in which Pfizer operates, including anti-bribery laws.
In 2020, Palesh was increasingly critical of Han’s performance, especially Han’s ability to communicate practical information to the team and to deliver a usable analytics product.
In November 2021, Han sent a 15-page PowerPoint deck to Palesh and two other colleagues flagging Pfizer’s unusual spending on potentially influential government officials in China and other countries. Palesh encouraged Han’s efforts on this project, but noted Han’s continued performance deficiencies mentioned in earlier performance reviews.
In March 2022, Palesh sent Han an email criticizing him for being unresponsive to team members and late to team meetings. On Aug. 3, 2022, Palesh sent Han a formal notice of underperformance, warning him that failure to improve would result in his termination.
About two weeks later, Han sent an email to upper management disputing the notice of underperformance. He mentioned the work he had done uncovering irregular spending in China and accused Palesh of workplace bullying.
Pfizer investigated Han’s concerns. The company determined Palesh’s treatment of Han was fair and that no further review was needed of Han’s concerns about company spending in China. In November 2022, Pfizer terminated Han’s employment.
Han sued Pfizer for retaliating against him for being a whistleblower in violation of California Labor Code section 1102.5 and for related claims. Martínez-Olguín granted Pfizer’s motion for summary judgment and dismissed the lawsuit.
Han’s protected complaints, suspiciously timed termination
The judge rejected Pfizer’s argument that Han had not engaged in protected whistleblower activity. Pfizer characterized Han’s November 2021 PowerPoint as nothing more than a “routine progress update” on Palesh’s assignment to Han to identify compliance risks. But section 1102.5 applies even to disclosures made as part of an employee’s job duties, the judge said.
Han’s emailed rebuttal of his notice of underperformance in August 2022 was also protected because it went beyond mere concerns about a personnel matter and included troubling compliance concerns about Pfizer’s spending in China.
Martínez-Olguín additionally concluded that the roughly two-month gap between Han’s rebuttal to his notice of underperformance and his termination established at least a question that Han’s alleged whistleblowing influenced Pfizer’s decision to fire him.
Click here to read the full article written by SCMV Shareholder Dan Eaton and published in The San Diego Union-Tribune.