Safety whistleblower spoke "on a matter of public concern"

Speaking on a "matter of public concern," is protected speech, according to a federal jury in Becky McClain v. Pfizer, Inc. In this case, the jury found that being exposed at work to a genetically engineered virus or other biotech agents is indeed a legitimate matter of public concern. It involved Ms. Becky McClain who was employed as a molecular biologist by the pharmaceutical giant at their Groton, CT research center. She raised concerns in 2002-2003 about unsafe lab practices including procedures involving a genetically-modified viruses, (a pseudotype Lentivirus, HIV with a Vesicular Stomalitis Virus Glycoprotein pseudocoal) and eventually filed a complaint with federal OSHA after being retaliated against for speaking up about her safety concerns. In a Sept 27, 2006 letter from federal OSHA the agency said:

"The fact that Complainant engaged in protected activity throughout 2002 and 2003--by raising concerns about industrial hygiene, claiming that her supervisor had subjected her to workplace violence, and being a member of a safety committee---is undisputed. It is also undisputed that Respondent was aware of this activity and that it took several adverse actions against her."[emphasis added]

Despite this, Ms. McClain's experience as a whistleblower could not meet the insurmountable criteria under the OSH Act, as is the case for many workers who are retaliated against for complaining about safety. The first strike against Ms. McClain under OSHA's whistleblower provision (Section 11c of the OSH Act) was the requirement to file her complaint within 30 days of the alleged retaliation. (I can imagine a situation where a worker doesn't realize she has been retaliated against until after 30 days have passed.)

The OSHA system failed her, but she pursued her complaint under different legal authority, and a six year battle ensued between the safety whistleblower and Pfizer. On May 21, 2010, a jury found in Ms. McClain's favor.

I offer below the 20 specific findings by the jury in favor of Ms. McClain, but first I need to comment on an item in a New York Times' article related to this case. In Pollack and Wilson's "Safety Rules Can't Keep Up with Biotech Industry," the reporters correctly note that federal OSHA has failed to venture into a regulatory scheme to protect biotech workers. I'm always pleased when any recognition of worker health and safety finds its way into print. The NYTimes reporters make a giant, really GIANT leap, however, linking OSHA's May 6 request for information on infectious diseases, (75 Fed Reg 24835) and a possible regulation to protect biotech workers like Becky McClain.

The reporters write:

"...as a first step toward possible new regulations, the agency issued a sweeping request for information on occupational risks from infectious agents, and for suggestions on how to reduce them. The focus is mainly on hospital and other health care workers, but any rules are expected to also cover industry laboratory workers."

Whoa Nellie! Since when is an OSHA Federal Register notice requesting information from the public translate into the "first step toward possible new regulations"??

When I hear "first step," I think proximity or nearness in time. History tells us, however, there's little connection between OSHA publishing a request for information (RFI) and a subsequent new regulation 7, 8 or even 9 years later. For example, OSHA chose the RFI route in January 1984 for the compound 1,3 butadiene and a final rule wasn't issued until November 1996 (and under an unusual labor-mgmt agreement that probably expedited the rulemaking.) For its rule on toxic chemicals in laboratories, OSHA published an RFI in April 1981 and the final rule was issued in January 1990. OSHA's RFI on beryllium was published in November 2002 and the next step has yet to be taken.

What's particularly disconcerting about biotech hazards is seeing how the industry's advances skip whole generations in just 1-2 years. Compare that to OSHA's rulemaking process which slogs along in decade-long increments. It's difficult for me to imagine how information from this RFI will result in near-term protections for biotech workers. I hope that OSHA is considering alternatives, such as simple right-to-know protections so workers aren't obstructed by employers claiming these bioengineered materials are proprietary. (That's an issue that Ms. Becky McClain is still fighting.)

In Becky McClain v. Pfizer, the jury found in favor of the safety whistleblower on 20 counts. The jury's complete verdict is here and I've summarized it below:

First count:

A1: Did Becky McClain prove, by a preponderance of the evidence, that she made her November 18, 2004 report to OSHA in good faith, that is, that she truly believed that Pfizer had violated workplace safety laws? Yes.

A2: The parties have stipulated that Pfizer discharged Becky McClain after she made her November 18, 2004 report to OSHA about a suspected violation of law. Did Becky McClain prove by a preponderance of the evidence that Pfizer also disciplines or otherwise penalized Becky McClain after she made her report? Yes.

A3: Did Becky McClain prove, by a preponderance of the evidence, that Pfizer's non-retaliatory explanation for terminating her, that she abandoned her job, was not the true and only reason for her discharge? Yes.

A4: Did Becky McClain prove by a preponderance of the evidence that her report to OSHA was a substantial or motivating factor for Pfizer's decision to discharge her? Yes.

A5: Did Becky McClain prove by a preponderance of the evidence that her report to OSHA was a substantial or motivating factor for Pfizer's decision to discipline or otherwise penalize her? Yes.

A6: Did Becky McClain prove, by a preponderance of the evidence, that she suffered damages as a result of Pfizer's proven violation of the law on the First Count? Yes.

A7: Did Becky McClain prove, by a preponderance of the evidence, that she is entitled to damages for back pay, (lost wages and lost benefits) as a result of Pfizer's proven violation of law on the First Count? Yes.

A8: What amount of lost wages and benefits did Becky McClain prove, by a preponderance of the evidence, that she suffered as a result of Pfizer's proven violation on the First Count? $685,000

A9: Did Pfizer prove, by a preponderance of the evidence, that Becky McClain failed to take reasonable steps to mitigate her lost wages and lost benefits that resulted from Pfizer's proven violation of law on the First Count? No.

A10: What amount of lost wages and benefits, if any, did Pfizer prove, by a preponderance of the evidence, that Becky McClain could have mitigated by seeking alternate employment of by accepting reasonable offers of employment? $ 0.

Second Count:
B1:Did Becky McClain prove, by a preponderance of the evidence, that she spoke, verbally or in writing, about a matter of public concern? Yes.

B2: Did Becky McClain prove, by a preponderance of the evidence, that her speech on a matter of public concern was made as a public citizen and not solely to address a personal concern? Yes.

B3: Did Becky McClain prove by a preponderance of the evidence that at the time she spoke on a matter of public concern she believed that her speech was truthful and that it was not made with a reckless disregard for the truth? Yes.

B4: Did Becky McClain prove, by a preponderance of the evidence, that her speech on an issue of public concern did not substantially or materially interfere with her bona fide job performance or her working relationship at Pfizer? Yes.

B5: The parties have stipulated that Becky McClain was terminated by Pfizer on May 26, 2005. Did Becky McClain prove by a preponderance of the evidence that Pfizer also disciplined her on or after October 11, 2003. Yes.

B6: Did Becky McClain prove by a preponderance of the evidence that her speech on a matter of public concern was a substantial or motivating factor for Pfizer's decision to discharge her? Yes.

B7: If the answer to "B5" is "yes", did Becky McClain prove by a preponderance of the evidence that her speech on a matter of public concern was a substantial and motivating factor for Pfizer's decision to discipline her on or after October 11, 2003? Yes.

B8: Did Becky McClain prove, by a preponderance of the evidence, that she is entitled to punitive damages for Pfizer's proven violation of the Second Count, that is, that Pfizer's violation of her free speech rights was willful, malicious, or a result of reckless indifference? Yes.

B9: Did Becky McClain prove, by a preponderance of the evidence, that she suffered damages as a result of Pfizer's proven violation of law on the Second Count? Yes.

B10: Did Pfizer prove, by a preponderance of the evidence, that Becky McClain failed to take reasonable steps to mitigate damages that she suffered as a result of Pfizer's proven violation of law on the Second Count? No.

This reads like a slam dunk for Becky McClain. It seems bittersweet though because our federal law for safety whistleblowers should provide adequate redress. There are hundreds of Becky McClains out there who've been harmed for complaining about safety, but maybe only a few who had their successful day in court.