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Better the Devil You Know: Court-Ordered Reinstatement for Ousted Whistleblowing Employee

Most state and federal laws protecting employees from employment discrimination and retaliation contain provisions that allow an employee who has been wrongfully or unlawfully terminated to be reinstated to his or her former position. As a practical matter, reinstatement is often not to the exact same position the employee previously held—that position may have already been filled by someone else or, in some cases, eliminated through a restructuring during the time it takes for the case to make its way through the court system. In those instances, the court will require the employer to reinstate the employee to a “comparable” position with the same pay, benefits, and seniority status as the position formerly held by the employee.

Defining what constitutes a “comparable” position for reinstatement of a wrongfully terminated employee can in-and-of-itself be the subject of disagreement between the parties. A recent case involving an employee who was illegally terminated by Bayer Pharmaceuticals illustrates this point.

In Townsend v. Bayer Corp., Bayer fired Mike Townsend, a sales rep, after Townsend “blew the whistle” on fraudulent Medicaid claims submitted by one of Bayer’s customers. 774 F.3d 446, 452 (8th Cir. 2014). After a trial, a jury determined that Bayer retaliated against Townsend for reporting the fraud and cooperating with a subsequent government investigation. Id. at 454-55. The jury awarded Townsend money damages for his lost wages and emotional distress, and the court separately ordered Bayer to reinstate Townsend to a position comparable to the one he had held before his unlawful termination. Id. at 451.

Bayer responded to the court’s reinstatement order by informing Townsend that the only open position available for him was located in Knoxville, Tennessee, which is approximately 500 miles from Townsend’s home in Little Rock, Arkansas. Townsend v. Bayer Healthcare Pharmaceuticals, Inc., No. 5:11CV00055 JM, slip op. at 2 (E.D. Ark. May 4, 2015). The court concluded that this was “not a good faith effort” by Bayer to comply with the reinstatement order because a “comparable position” is not a position “requiring relocation from Little Rock, Arkansas to Knoxville, Tennessee.” Id. The court further ordered Bayer to continue paying Townsend’s lost wages “until the date [Bayer] complies with the Court’s Order of reinstatement.”

While reinstatement to a company that is responsible for retaliation and the cause of one’s emotional distress and lost wages may seem the last thing a successful plaintiff would choose, sometimes there are no other options. Specialized fields, depressed job markets, inability to find comparable position or any position at all make reinstatement an attractive possibility. And, after all, better the devil you know than the devil you don’t.