Whistle-blowing Bayer sales rep wins again in wrongful termination suit

Was it the canceled credit card? Or was it the whistleblowing? Those were the big questions in a former Bayer HealthCare sales rep's wrongful termination suit--and though Bayer's appeal in the case technically rested on different questions, the credit card and the whistleblowing were central to it all the same.

The former rep, Mike Townsend, won that wrongful termination suit at trial, along with $642,746 in back pay and whistleblower hazard compensation, plus $568,000 in emotional distress damages. Bayer quickly fought back, taking the case to the Eighth Circuit Court of Appeals--but no dice. The panel has now ruled, and though it reduced Townsend's emotional distress damages to $300,000, the rest of the court ruling--and jury award--remains intact.

In a decision late last month, the appeals panel laid out all the reasons why Bayer's legal quibbles were unconvincing--and in the process, reiterated the evidence in Townsend's favor. Yes, Townsend's company credit card was suspended because of unpaid balances. But that's not why he was fired, despite his bosses' protests to the contrary. In fact, plenty of other Bayer reps see their cards suspended just the same way--and their accounts are reinstated when things are put right, just as Townsend's was.

What other reps didn't do, the ruling points out, was report Medicaid fraud to the feds. It wasn't Bayer that defrauded the government, but one of its doctor-customers. According to the lawsuit, this doctor was buying gray-market versions of Bayer's Mirena birth control device, shipped in from overseas, and bragging about his supposed $50,000 in profits on the deal.

And according to the panel's opinion, Bayer's unwritten rulebook specified that reps keep quiet about any shenanigans they witnessed when out meeting with doctors. Physicians are the company's customers, after all. If reps saw evidence of doctors misbehaving, they were supposed to tell their supervisors back at the office--that was a stated rule. If their bosses did nothing? That's when the unwritten rule prohibited any direct tattle-tale activity, the panel's ruling noted. 

Townsend obeyed the stated rule. But when his bosses didn't follow up, he broke the unwritten rule and called a fraud hotline, the panel notes. He went on to help the government prosecute its case against this doctor under the False Claims Act. And meanwhile, he was fired. Ostensibly for that unpaid credit card bill (which was, by then, actually paid).

In addition to his monetary award--which, in its reduced form, is now just a tad less than $1 million--Townsend won his job back. Not necessarily his exact job; a similar job with similar seniority at the company. This is the one provision that Bayer is still pushing against.

Last week, the company petitioned for a rehearing, specifically about Townsend getting his job back. Bayer claims that his particular position no longer exists. He would have been laid off in job cuts taken back in 2012, the company says. The 3-judge panel that originally ruled rejected that argument, so Bayer is asking it to reconsider.

- see the appeals court's judgment
- see Bayer's petition

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