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/ ↗
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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
          omitted; internal quotation marks omitted.) Kahn v. United States Secretary
          of Labor, supra, 64 F.3d 278; see also Mt. Healthy City School District Board
June 11, 2024                  CONNECTICUT LAW JOURNAL                                       Page 39
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