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Fowler v. Criticare Home Health Services8/4/2000
ave just recited and discussed. It does not qualify as a report to higher management at the company or to law enforcement. In addition, Fowler admitted he did not inform Moore or Garber that he had carried out his threat to report to UPS, and no whistle-blowing claim arises unless the discharging employer is aware of the discharged employee's report prior to termination. Here, Criticare did not learn that Fowler informed UPS until long after Fowler's departure, when the federal agent from BATF came calling.
Evidently recognizing this infirmity in his case, Fowler asks us to extend Palmer protection to situations in which an employee has merely threatened to blow the whistle prior to his or her discharge. An employer's knowledge of the threat should be equivalent, Fowler argues, to an employer's knowledge of the actual whistle-blowing. We simply do not believe the Supreme Court intended Palmer to be so extended. We--and litigants--must remember that Palmer's holding defines an exception in employer/employee relations rather than the rule.
Retaliatory Discharge for Refusal to Break the Law
The district court also granted summary judgment to Criticare on Fowler's claim that he was discharged in retaliation for his refusal to violate 18 U.S.C. § 922(e) (1994), or for his refusal to engage in conduct he "reasonably believed" would be a violation of that or some other statute or public policy protecting the public.
The district court found that Moore's request did not actually require Fowler to violate federal law and thus could not support this claim. There is no evidence in the record that Moore explicitly told Fowler to ship the guns and ammunition by any particular carrier or in any manner that would violate federal law. Moore merely asked Fowler to ship the items.
Fowler argues, however, that Moore's request necessarily required him to violate 18 U.S.C. § 922(e), which provides in pertinent part:
"It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped." (Emphasis added.)
In essence, Fowler advocates for our acceptance of a simple syllogism: First, UPS was the shipping company Criticare customarily used and, according to Fowler, it had a policy disallowing the shipment of firearms, unless the shipper was a licensed dealer, manufacturer, or importer; second, if the written notice required under 18 U.S.C. § 922(e) were provided, UPS would have refused to ship the materials; therefore, when Moore asked Fowler to ship the guns and ammunition, he was implicitly demanding that Fowler try to sneak the items by UPS in violation of federal law and UPS policy.
Unfortunately for Fowler, he has proof problems on each of the premises necessary to his conclusion. With regard to the first premise, the purported UPS policy he attempted to employ during Moore's deposition and then attached to his response to Criticare's motion for summary judgment and to his appellate brief has not been authenticated by anyone from UPS. Moreover, Moore testified that, because of Fowler's concern, he looked in his UPS brochure and found nothing to suggest it was illegal to ship the guns and ammunition.
With regard to the second premise, Fowler admitted he did not know if UPS would have approved the shipping if he had notified it i
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