On January 9, 2009, a district court in Pennsylvania decided that Frank Fato, a former executive of Vartan National Bank (VNB), can proceed with his whistleblower lawsuit against VNB in federal court. In his complaint, the former executive alleges that VNB violated the whistleblower protection provisions of the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), when the company terminated his employment for allegedly disclosing information about the general counsel’s purported interference with VNB’s corporate management. VNB moved to dismiss the case, arguing that Fato did not have a cognizable claim because he did not allege “plausible facts which demonstrate that a majority of the Board members knew of [his] disclosures to the OCC representative prior to terminating his employment.” The district court rejected VNB’s argument, concluding that under Section 1831j of the FIRREA, an employee need not provide direct evidence of an employer’s knowledge, but instead need only provide circumstantial evidence that the employer knew about the employee’s disclosure before taking an adverse personnel action. Finding that at least one VNB board member expressly knew of Fato’s disclosure to the OCC and that there was a three-week gap between Fato’s disclosure and his termination, the court determined that one can reasonably conclude that the disclosure was a “contributing factor” in the adverse employment action. Accordingly, the court denied VNB’s motion to dismiss.
This case is significant because it rejects the notion that employees need direct evidence to satisfy their prima facie case of retaliation against employers. To satisfy the “contributory factor” test, an employee need only provide circumstantial evidence, i.e., evidence that demonstrates that the official taking the adverse personnel action against the employee knew of the employee’s protected disclosure and that the personnel action occurred within a time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.