In fact, both Timman and Neal testified at their depositions that Timman informed her on March 6 that Frakes knew she was the one who had made the call. There is no evidence that any Honeywell employee was ever disciplined for failing to maintain the confidentiality of Neal's identity.
On March 5, 1987, Neal informed Tyler that she had made the hotline call. According to Neal, Tyler responded angrily and told her she should not have done it, that she had put the plant and the jobs of all its employees in jeopardy. During the next two weeks, Tyler made similar comments. Neal asserts that in early April, Tyler told her she had ruined the facility. Honeywell disputes that Tyler made these comments.
Through the investigation by Timman and Ray Loonan,
Honeywell determined by Friday, March 6, 1987, that there was substance to Neal's allegations, and it relayed information about the testing irregularities to the federal government. That day, Frakes and other top managers were informed that they were to be suspended on Monday, March 9, 1987.
And, on Monday, March 9, 1987, Honeywell suspended all ammunition testing at Joliet, replaced the managers there with Honeywell personnel from outside Joliet, and began a formal internal investigation. Frakes and the other suspended managers were restricted, for the most part, to a training room located near Neal's office.
Mockenhaupt announced the suspensions and investigation to the employees at Joliet via a memorandum which stated that the investigation resulted from a hotline call. There is evidence (in the form of deposition testimony from persons employed at Joliet at the time) that an active "rumor mill" regarding the identity of the whistleblower quickly developed. According to some of the deponents, it was soon known by many employees at the Joliet plant that Neal had made the hotline call.
On March 17, 1996, Neal learned from Christopher Long ("Long"), a human resources trainer and a friend of hers, that David Young ("Young"), a production manager at Joliet and one of the suspended managers, had threatened to "get" the whistleblower.
She informed Timman, who asked if she wanted physical protection, which she declined. There is no evidence that Timman informed any of his superiors of Young's threats.
When Honeywell began its internal investigation, it assigned A. Allen Gray ("Gray"), associate general counsel at Honeywell, and Daryl Zimmer ("Zimmer"), Honeywell's director of ethics, to investigate either "personnel actions," according to Honeywell, or Honeywell's possible criminal and civil exposure, according to Neal.
During their interviews with Joliet employees, they learned on April 9, 1987, that Young had threatened the whistleblower. At some point thereafter, one or both of them confronted Young, who admitted making the threat and promised it would not be repeated. However, in their report, given to Honeywell's management later, Gray and Zimmer concluded that there was some evidence that Young had "not fully overcome these feelings of retribution and reprisal." (Pl.'s Response to Defs.' Rule 12(M) Statement, Ex. 10.) There is no evidence that either Gray or Zimmer made any report to their superiors when they first learned of Young's threats. No disciplinary action was initiated against Young at that time, and Spotts, the acting plant manager at Joliet, never addressed the issue with him.
There is evidence that none of the upper level personnel at Honeywell involved in the Joliet investigation, including Mockenhaupt, Becker, Spotts, and Gray, ever made an effort to protect Neal from retaliation or harassment at the plant. In fact, each of these people testified at their depositions that either that they took no action in this regard or that it was not their responsibility to do so.
In the second week of May, someone at Honeywell informed Neal that the investigation was about to conclude and that personnel actions would be taken. Tyler offered Neal a one-month paid leave of absence, which she accepted because she was concerned that if any of the suspended personnel were disciplined, they might retaliate against her. Neal did not return work until the middle of June.
On May 11, 1987, in conjunction with the completion of the internal investigation, Young was transferred immediately to a position at a Honeywell facility in Minnesota. Although he received a memorandum from Fraasch which informed him that his grade was being lowered and which stated that his "expressions of retribution and possible attempts to intimidate employees . . . [were] unacceptable management behavior," (Def.'s Ex. P-1), in fact Young was placed in charge of a factory employing about 375 people (nearly double the size of Joliet, where he had been the number two man) and continued to receive the same salary.
He was informed in August 1987 (after the transfer) that, beginning in November 1987, he would receive a merit salary increase of about $ 800 per month.
Neal contends that after she informed Tyler that she was the whistleblower, he stripped her of virtually all her responsibilities. She also asserts that he isolated her from other employees at the plant. The defendants dispute this and argue that she continued to perform rewarding job duties. They also assert that some of Neal's official responsibilities, such as "team building," were temporarily suspended because of the level of disruption which existed at Joliet as a result of the investigation. We find that there are significant disputes of material fact regarding this issue.
By April 1987, Neal expressed to friends and her counselor that she felt she was being treated badly because she had made the hotline call and that she wanted to leave Honeywell. She contends that the stress of her situation there caused severe depression, insomnia and nightmares. She put her house on the market on April 23, 1987. In March and April 1987, she interviewed for and was offered positions at Honeywell facilities in Minneapolis and Tampa.
She declined them because she felt that such moves would be only lateral and did not include salary increases.
When the house sold in the middle of August 1987, she immediately resigned from Honeywell and moved to Connecticut, where she did not have a job. After several months of being unable to work at all due to her depression, she took a job as a cashier and tried selling cosmetics.
She eventually resumed her career by teaching.
Rule 56(c) of the Federal Rules of Civil Procedure allows us to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In considering the evidence submitted by the parties, we do not weigh it or determine the truth of asserted matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). We are to view all facts and draw all reasonable inferences in the light most favorable to the non-moving party. Transamerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir. 1992). "If no reasonable jury could find for the party opposing the motion, it must be granted." Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995) (citing Anderson, 477 U.S. at 248).
Before we address the merits of the defendants' motion, the parties have raised a legal question: what standard is applied to claims of retaliation under the False Claims Act? The defendants assert that we should use the standard for constructive discharge claims under Title VII, namely, that Honeywell "created working conditions so intolerable that [they] would cause a reasonable employee in Neal's position to immediately depart." (Defs.' Br. at 6.) They also argue that under this standard, the employee may be not unreasonably sensitive to her working environment and "'must seek legal redress while remaining on his or her job unless confronted with an "aggravated situation" beyond "ordinary" discrimination.'" Id. (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir. 1993)). Furthermore, they assert, Neal cannot recover any claim of harassment or emotional distress because she cannot show a materially adverse change in her working conditions. Neal, on the other hand, argues that under the False Claims Act, we should employ the standard that if an employee's claims are sufficient to satisfy Rule 11, an objective test, then the employee should be free from any form of discriminatory or retaliatory treatment, as long as the employee actually suffers an adverse effect from that treatment. Neither party cites to us any cases decided under the False Claims Act.
Neal's retaliation claim is brought under section 3730(h) of the False Claims Act, which states:
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any way discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. . . .
31 U.S.C. § 3730(h). In the only decision from the circuit courts of appeals to address the elements of a claim under this provision, the Ninth Circuit has held that a plaintiff must prove three things: first, the plaintiff was engaged in conduct protected under the False Claims Act; second, the employer must have known that the plaintiff was engaging in such conduct; and third, the employer must have discriminated against the plaintiff because of her protected conduct. United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996).
In paragraph 34 of her complaint, Neal alleged:
Plaintiff suffered discrimination in the terms and conditions of her employment, including constructive discharge, demotion, change of work duties and responsibilities, constructive suspension, threats and harassment, misrepresentation of how she could report said misconduct and maintain her anonymity, all committed by her employer for the reason that the employee committed lawful acts; namely, reporting false claims and fraud against the United States internally to Honeywell on the "Infoline", in furtherance of an action under 31 U.S.C. § 3730 . . .