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A government worker who blows the whistle on corruption cannot be moved to a less desirable job as a result of his report even if the employer did so only to prevent conflicts among workers who might have resented his tattling, the Pennsylvania Supreme Court has ruled. In O’Rourke v. Commonwealth of Pennsylvania Department of Corrections, the justices were forced to parse out the meaning of a statutory defense in the Whistleblower Law. Under the defense, an employer can win dismissal of a whistleblower suit by showing that the actions it took against the whistleblower “occurred for separate and legitimate reasons, which are not merely pretextual.” The Commonwealth Court found that the Department of Corrections satisfied the test by showing that its goal in moving William H. O’Rourke to a different job in the State Correctional Institute at Dallas, Pa., was not to punish O’Rourke for blowing the whistle on a rampant theft of meat from the prison kitchen, but to reduce the potential for conflict among the kitchen workers after the investigation. Now the Supreme Court has revived O’Rourke’s case, finding that the Commonwealth Court misconstrued the defense. Writing for the court, Justice Thomas Saylor said the case turned on the meaning of the word “separate” in the statute’s defense clause. “If the intended meaning is ‘separate from a retaliatory motive,’ then the department’s actions were indeed ‘separate’ because … they were taken to reduce the potential for conflict,” Saylor wrote. “If, however, the term signifies that the employer must act with a rationale that is ‘separate from the report of wrongdoing,’ a different result obtains,” Saylor wrote. Saylor found that because the law “does not state which meaning is intended,” the court was forced to interpret the statute by considering the context of the word, the “mischief” the law was designed to remedy and the overall purpose of the law. He found that the Whistleblower Law was designed to encourage openness in government by protecting government workers who inform authorities of wrongdoing. By contrast, Saylor said, the law was not primarily designed to punish employers for retaliating against whistleblowers. As a result, Saylor said, an employer satisfies the statutory defense only if it can show that “it would have taken the same adverse employment action absent the employee’s good-faith report of wrongdoing.” The Department of Corrections clearly failed to meet that test, Saylor found, since it conceded that its decision to move O’Rourke was a direct result of his report of theft. “From the Commonwealth Court’s findings, it is clear that there prevailed at SCI-Dallas an intolerable situation involving systematic theft of government property, which was condoned or deliberately overlooked by government employees in positions of substantial trust,” Saylor wrote. “O’Rourke’s report became the impetus for necessary corrective action, as well as the cause for heightened potential for conflict in the post-corrective period. In such circumstances, where the reasons for administrative actions involving reassignment and diminution in status cannot be deemed separate from the report of misconduct, the Whistleblower Law requires that the burden of such action fall upon the department and not upon O’Rourke,” Saylor wrote. Since the department failed to show that its actions occurred for reasons “separate” from the report of wrongdoing, Saylor found that it had failed to rebut O’Rourke’s prima facie case and that O’Rourke is therefore “entitled to compensation.” According to the opinion, O’Rourke has worked in SCI-Dallas’ food preparation and distribution department since the 1980s. His job entailed overseeing the kitchen staff which is made up mostly of inmate labor. In April 1996, O’Rourke said he learned of a scheme in which thousands of pounds of meat were being stolen from the kitchen and provided to inmates who were running an illegal sandwich-making business. The sandwiches were being smuggled out of the kitchen where they were traded for cigarettes — the “de facto currency of the prison barter economy.” The meat thefts were covered up by altering the kitchen’s inventory books. O’Rourke reported that inmate-clerks had altered the books with the knowledge of some of the prison’s workers. When he filed his report, O’Rourke said he went directly to SCI-Dallas’s deputy superintendent, Thomas Stachelek, because he feared that kitchen management workers wouldn’t address the problem. Investigators confirmed that the thefts had occurred and blamed administrators of the prison kitchen for conduct that “bordered on the fringe of mismanagement.” Corrective measures included placing a lock on the kitchen’s freezer and taking inventories twice a day. Inmate-clerks were also barred from playing any role in the inventory accounting. O’Rourke claimed that after his report, he suffered various forms of harassment and retaliation, including some harassment from inmates that, he said, was encouraged by his supervisors. He also complained that he was moved from his post in the kitchen to a post on the service line in the dining hall — a job he said was less desirable because it included less supervisory duties and made him ineligible for extra pay and possible promotions. But the Commonwealth Court dismissed O’Rourke’s whistleblower suit after finding that the decision to change his job was motivated purely by the prison’s desire to avoid conflict among the workers and not to “exact retribution.”

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