Section 4-61dd

Citation: Section 4-61dd
Parent Document: Dept. of Public Health v. Estrada, 349 Conn. 223 (2024)
Jurisdiction: Connecticut (state)
Effective Date: 2024-06-11
Original Source: https://www.courtlistener.com/opinion/10131752/dept-of-public-health-v-estrada/ ↗
Full Text

3,363 chars
lature, for state employees who self-report would dilute
       the efficacy of the statute by creating perverse incen-
       tives. Employees who were involved in any of the mis-
       conduct would be discouraged from coming forward
       because their disclosure would not entitle them to any
       protections. The department concedes as much. Thus,
       we conclude that, so long as an employee can prove
       causation (i.e., that he or she was disciplined as a result
       of the disclosure and not the underlying conduct), the
       employee is entitled to receive whistleblower protec-
       tion despite his or her involvement in the facts giving
       rise to the disclosure.7
          7
            In related contexts, federal courts agree that self-reporting can be a
       protected activity but also emphasize that whistleblower statutes cannot
       ‘‘be used by employees to shield themselves from the consequences of their
       own misconduct or failures.’’ Trimmer v. United States Dept. of Labor,
       supra, 174 F.3d 1104; see, e.g., Smith v. Dept. of Labor, 674 Fed. Appx. 309,
       316 (4th Cir. 2017) (holding that whistleblowers cannot ‘‘shield [themselves
       from the consequences of] their own misconduct by providing negative
       information about their own activities’’ and that ‘‘[the] [p]rotected activity
       will not shield an [underperforming] worker from discipline’’ (internal quota-
       tion marks omitted)); Kahn v. United States Secretary of Labor, 64 F.3d
       271, 279 (7th Cir. 1995) (‘‘[an employee’s] attempt to hide behind his pro-
       tected activity as a means to evade termination [of employment] for [nondis-
       criminatory] reasons is flawed’’); see also, e.g., Norfolk Southern Railway
       Co. v. United States Dept. of Labor, Docket No. 21-3369, 2022 WL 17369438,
       *10 (6th Cir. December 2, 2022) (‘‘employees cannot immunize themselves
       against wrongdoing by disclosing it’’ (internal quotation marks omitted));
       Dakota, Minnesota & Eastern Railroad Corp. v. U.S. Dept. of Labor Admin-
       istrative Review Board, 948 F.3d 940, 946 (8th Cir. 2020) (same); BNSF
       Railway Co. v. United States Dept. of Labor, 816 F.3d 628, 639 (10th Cir.
       2016) (same). We agree with the department that these cases rightly direct
       courts to allow whistleblower protection for an employee who reports his
       or her own error if the employee is able to demonstrate causation. The
       relevant question is whether the employer disciplined the employee for the
       disclosure itself or the underlying conduct. See, e.g., Smith v. Dept. of
       Labor, supra, 316–18; BNSF Railway Co. v. United States Dept. of Labor,
       supra, 638–41.
          We also note that, when there are ‘‘dual motives’’ for the adverse personnel
       action, under the McDonnell Douglas three part, burden shifting framework,
       ‘‘once the [employee] has shown that the protected activity played a role
       in the employer’s decision . . . the employer has the burden to prove by a
       preponderance of the evidence that it would have [discharged] the employee
       even if the employee had not engaged in the protected conduct.’’ (Citation
Page 36                         CONNECTICUT LAW JOURNAL                                       0, 0
Other Sections in This Document (239)

Full Text
