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Scorched earth tactics and retaliation lawsuits

How badly can an employer want to retaliate against a whistleblower?

Apparently, pretty badly, if the $10 million spent defending the wrongful termination claim of a Department of Energy employee is any indication. The process is known as "scorched earth litigation" and it is designed to intimidate and frighten most people into backing down off of a lawsuit and moving on, rather than staying embroiled in a case that can drag on year after year.

In this case, the former Department of Energy employee, who worked as a computer technician in a lab in northern California responsible for maintaining the United States' stock of nuclear weaponry, testified on behalf of a colleague who was a victim of sexual harassment.

Subsequently, the computer technician was fired for making a few local calls from her office, which cost the Department of Energy a grand total of $4.30.

She sued for wrongful termination and retaliation, and the Department of Energy eventually lost—but not until the California lab dragged the process out over 8 years and spent $10 million in taxpayer dollars trying to beat her.

Scorched earth litigation involves more than a merely aggressive approach to a lawsuit. It usually involves tons of motions, depositions, document requests and pre-trial disputes, all as a way of trying to make the other party want to give up or settle for a much lower-than-necessary amount just to be done with the whole thing.

While this tactic can be difficult to withstand, plaintiffs should keep in mind that attorneys who specialize in whistleblower lawsuits and retaliation claims have probably seen the tactic more than once. So have judges. In response, the courts can take a defendant's scorched earth tactics into consideration when determining any final award, upping the total dollar amount in order to cover both the plaintiff's attorney's fees and court costs.

The goal of the court is to level the playing field and make it possible for anyone with a claim that has merit to successfully bring a retaliation case against an employer—even one that seems like it holds all the money and power.

If you feel that you were wrongfully terminated in retaliation for some part you played in a whistleblower's complaint, don't allow a large employer with resources to frighten you out of asserting your rights. Consider talking to an attorney today.

Source: Newsmax, "Report: Dept. of Energy Spent $10 Million on Lawsuit Over $4.30," Jason Devaney, Jan. 30, 2017

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