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Gutierrez v. Sundance Indian Jewelry Inc.12/16/1993
of Maine, New Hampshire, Ohio, Oregon, and Pennsylvania. Reasonable belief or reasonable cause is required by the statutes of Maine, New Hampshire, Ohio, and Rhode Island. (Hawaii requires that the allegation not be knowingly false, and Minnesota requires that it not be knowingly false or reckless.) The statutes of Florida, Maine, New Hampshire, New Jersey, New York, and Ohio require the employee ordinarily to first report the problem to the employer. Courts have also imposed these requirements as a matter of common law. See Palmer, 752 P.2d at 690 (whistleblowing must have been in good faith); Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d 755, 759 (Neb. 1988) (action lies only when employee acts in good faith and upon reasonable cause in reporting employer's suspected criminal violation); cf. Seery v. Yale-New Haven Hosp., 17 Conn. App. 532, 554 A.2d 757 (Conn. App. Ct. 1989) (plaintiffs fired for refusing to work with impaired physician must provide evidence that physician was actually impaired); House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 556 A.2d 353, 358 (N.J. Super. Ct. App. Div.), cert. denied, 117 N.J. 154, 564 A.2d 874 (N.J. 1989) (employee who claimed retaliatory discharge for his complaint within company regarding contamination of products can recover only if he had reasonable belief that products were contaminated).
To sum up, because the common-law cause of action for retaliatory discharge for whistleblowing in New Mexico cannot rely on NMOHSA and OSHA or the regulations promulgated thereunder, the tort should not be recognized unless (1) the whistleblowing concerns a condition or practice that presents grave danger to health or safety. In addition, the whistleblower should not be entitled to common-law protection unless the whistleblower alleges and proves (2) that the allegation was made in good faith, (3) that there was an objectively reasonable basis for the allegation, and (4) that the allegation was made outside the company only after reasonable attempts to obtain relief internally.
Because Plaintiff's complaint does not allege any of the above four elements of the common-law cause of action, the complaint should be dismissed. If the complaint were not barred by accord and satisfaction, however, I would permit Plaintiff to amend the complaint. In this regard, it is important to note that it is not necessary that the allegation turn out to be true, assuming that even after exhaustion of reasonable internal reporting requirements, the worker could maintain a good faith, objectively reasonable belief in the allegation. Thus, Plaintiff is not barred by the apparent failure of the Bureau to agree with his complaint to the Bureau.
HARRIS L. HARTZ, Judge
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