Blown Whistle Falls on Deaf Ears: The Eighth Circuit Interprets MAP-21's Whistleblower Provision.
|Porter, Sarah Walters
Barcomb v. Gen. Motors, LLC., 978 F.3d 545 (8th Cir. 2020).
In recent years, whistleblowers have been praised as heroes by onlookers and in the media for bravely unveiling wrongdoing by their employers, but whistleblowers have not always enjoyed this white-hat status. (1) These private employees expose themselves to serious risks of backlash and retaliation from their employers, historically without any guaranteed protection from Congress or their respective state legislatures. (2) Decades-old social norms and corporate culture prioritized loyalty from employees. They allowed employers to fire employees who spoke out against the company and even blackball them from their respective industries. (3) With blind loyalty or termination being the only options for employees witnessing wrongdoing within their company, silence was the norm. (4) Over the last few decades, Congress has increasingly recognized the public importance of protecting these whistleblowers and has enacted more than two dozen statutes mandating protection from retaliation in a wide variety of industries, with more than half the states following suit. (5)
In Barcomb v. General Motors, Richard Barcomb, a mechanic at a General Motors, LLC ("GM") manufacturing plant, sued GM in federal court, alleging he was terminated for complaining about reports by his coworkers in the Final Process Repair Department, falsely claiming to have repaired defects in the steering plugs and other safety-related aspects of vehicles. (6) Barcomb alleged his firing violated the whistleblower provision of the Moving Ahead for Progress in the 21st Century Act ("MAP-21"). (7) In addressing this issue as one of first impression, the Eighth Circuit affirmed the district court's grant of summary judgment in favor of GM, finding that "MAP-21's text protects employees who report 'information relating to any motor vehicle defect'--not those who report problems with a process for ensuring quality control along the assembly line." (8)
This Note begins with an explanation of the facts and holding of the Barcomb decision. Part III reviews the history of federal whistleblower statutes, outlines the text of the whistleblower provision of MAP-21, and concludes with a discussion of the intended interpretation of federal whistleblower statutes based on established precedent. Part IV outlines the majority opinion of the Eighth Circuit as well as the dissenting opinion by Judge Melloy. Part V describes an alternative claim available for whistleblowers and discusses why it is often an inadequate remedy. Ultimately, this Note argues that MAP-21's whistleblower provision should be broadly construed in favor of protecting whistleblowers to follow precedent set by federal courts interpreting similar whistleblower statutes.
FACTS AND HOLDING
Richard Barcomb, a long-time GM employee, began working in GM's Final Process Repair Department in a Wentzville, Missouri manufacturing plant in 2014. (9) His duties included repairing any defects found in the vehicles coming off the manufacturing line that had occurred in an earlier stage of production. (10) As vehicles proceeded through the assembly line and errors occurred, employees were required to report and keep a log of damaged vehicles in the Global Standard Inspection Process ("GSIP"), an electronic repair-tracking system, as well as on paper tickets. (11) The vehicles then went through the Final Repair stage. (12) In this stage, mechanics like Barcomb would repair the errors marked in the GSIP and on the tickets. (13) Upon completion, the employee would mark the repair as complete in GSIP and on the paper ticket. (14) The vehicle was then tested once more and sent through a final inspection process. (15)
In January 2015, Barcomb began suspecting that his co-workers were falsely documenting repairs as complete in the GSIP system without completing them. (16) The unresolved errors ranged from simple cosmetic issues to more serious, safety-related concerns, both of which could have passed through the Final Process Repair Department undetected. (17) Concerned with the safety of the vehicles, Barcomb began making the necessary repairs himself based on the paper tickets found on each windshield. (18) On one occasion, Barcomb found that both the paper ticket and the GSIP indicated that a broken steering plug had been repaired, but a note on the vehicle's windshield indicated otherwise. (19) Barcomb made the necessary repair and reported the incident to GM's safety hotline. (20) He also made reports to his supervisor, shift leaders, and the General Assembly Area Manager regarding several specific incomplete repairs and the false reporting done by his co-workers. (21) Eventually, GM conducted a high-level internal investigation, which resulted in corrective action. (22) However, Barcomb's repeated reports, including ones made in March and April of 2016, began to annoy his superiors and co-workers, causing significant workplace stress for Barcomb. (23) On March 4, 2016, after one such report, Barcomb found a rubber rat in a noose at his workstation. (24)
On March 31, 2016, Barcomb was reprimanded for not being at his workstation, resulting in a disciplinary meeting between him and his superiors. (25) When leaving the meeting, his superiors reported Barcomb said something like, "I'll see you guys at your funeral." (26) Barcomb denied this and claimed he said something like, "this is a mistake." (27) Barcomb was placed on a three-day suspension, during which he saw a doctor for anxiety. (28) He then went on sick leave for four weeks. (29) Upon his return to work on May 2, 2016, his superiors presented him with two disciplinary options, both of which he declined. (30) Barcomb was fired because his alleged threat created what his superiors deemed a hostile work environment. (31)
On April 15, 2016, Barcomb filed a complaint with the Occupational Safety and Health Administration ("OSHA") against GM for retaliation and notified GM of the complaint that same day. (32) On December 1, 2016, Barcomb filed suit in federal district court against GM, asserting two claims. (33) The first was a retaliatory discharge claim under Section 31307 of the Moving Ahead for Progress in the 21st Century Act, and the second alleged wrongful termination in violation of Missouri's public policy exception to at-will employment, which protects employees who are terminated for reporting violations of the law. (34) GM moved for summary judgment, asserting that Barcomb did not engage in protected activity under MAP-21 because that statute only pertains to information related to defects in vehicles that have fully completed the manufacturing process, not those relating to errors found during the manufacturing process. (35) The United States District Court for the Eastern District of Missouri granted GM's motion for summary judgment, finding that retaliation for "'complaints on the misuse of the GSIP system as a whole and the false reporting by one co-worker in particular' was not actionable under MAP-21." (36) Because the MAP-21 claim failed, the second claim of wrongful termination failed as well. (37) Barcomb appealed to the United States Court of Appeals for the Eighth Circuit. (38)
The central question on appeal involved interpreting Section 30171 of MAP-21 to determine whether the statute requires that a complaint relate to post-manufacturing defects to constitute protected activity or whether the statute protects reports of defects during the manufacturing process. (39) Barcomb argued three points on appeal. (40) First, that the definitional section of the Motor Vehicle Act did not limit protected activities under Section 30171 to post-manufacturing whistleblowing. (41) Second, he claimed the district court's holding conflicted with the letter and spirit of whistleblower protections under Section 30171. (42) Without protecting reports related to defects in the manufacturing process, almost no employees in the department would be protected. (43) Finally, Barcomb asserted that he did, in fact, report information relating to defects on fully manufactured vehicles, which the text of the statute explicitly covered. (44)
The United States Court of Appeals for the Eighth Circuit affirmed the district court's grant of summary judgment based upon a narrow interpretation of Section 30171 and MAP-21's corresponding definitions. (45) The court found that because Barcomb's reports simply identified a potential risk of defect caused by errors in the reporting system, rather than "information about processes that created defects in motor vehicles," they did not qualify as protected activity under MAP-21. (46)
This Part first discusses the history of federal whistleblower statutes and describes the policy rationales behind protecting whistleblowers. Next, it outlines the text and key definitions of the whistleblower provision of MAP-21 and the statute's legislative history and purpose. This Part concludes with a discussion of a few precedential cases in which courts have interpreted similar whistleblower statutes.
History and Purpose of Federal Whistleblower Protection Statutes
The first protections for whistleblowers in the United States were established in 1777 when ten revolutionary sailors and marines reported misconduct by the Commander of the Continental Navy. (47) In response, the commander filed a criminal libel suit against the whistleblowers, and two of them were arrested. (48) Within the month, Congress enacted the nation's first mandatory whistleblower law. (49) It stated, "it is the duty of all persons in the service of the United States... to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge." (50) Congress also voted to cover the legal costs of the whistleblowers'...
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