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Naming Whistle-Blower Could Cost PETA

(CN) - A Florida deputy sheriff who lost his job after telling People for the Ethical Treatment of Animals that his former co-worker was allegedly abusing police dogs can sue the animal rights group for outing him as the whistle-blower, a federal judge ruled.

PETA had allegedly made an oral promise to protect the identity of former deputy Jason Yerk when he agreed to talk to the group about suspected animal abuse within the Lee County Sheriff's Office.

As a corroborating witness, Yerk said he described the abuse of a K-9 dog by a former coworker.

When PETA disclosed Yerk's identity to the sheriff's office during an internal affair investigation of the alleged canine abuse, he had to resign, according to the complaint.

Yerk said PETA intentionally broke the oral agreement, knowing that he would be subject to reprisals.

He sued PETA for breach of fiduciary duty, fraud, misrepresentation, breach of oral contract and negligence, saying PETA's disclosure had caused him lost wages, benefits and earning capacity.

PETA, on the other hand, contested the existence of a confidentiality agreement protecting Yerk's identity, and questioned whether a PETA caseworker would have the authority to enter such an agreement.

Since law enforcement had compelled PETA to identify Yerk, PETA also claimed that the Yerk's name could not remain confidential.

Yerk said he had initially denied talking to PETA but came clean in a follow-up interview with the internal affairs investigator. After internal affairs placed Yerk under investigation, finding that he had lied to the police, Yerk decided to resign.

PETA sought to dismiss Yerk's action, arguing that his perjury during the investigation invalidated his claims.

U.S. District Judge John Steele rebuffed PETA's argument, finding that Yerk's untruthfulness does not constitute "illegal" conduct under any Florida statute, since his statements had no bearing on the result of the investigation. What's more, the internal affairs interview was not an "official proceeding.

Steele also rejected PETA's contention that the confidentiality agreement contradicted Florida public policy and was therefore unenforceable. "In this case, the confidentiality agreement allowed PETA to disclose the substance of the alleged abuse and the identity of the witnesses to it," according to the Nov. 4 ruling. "The agreement only precluded the disclosure of the identity of PETA's source. While it seems clear that the confidentiality agreement did not and could not create an absolute privilege, and would eventually give way to lawful procedures which could compel disclosure of the source's identity, that stage had not arrived in this case. At the time of the disclosure in this case, PETA was not legally required to answer questions from the LCSO [Lee County Sheriff's Office]."

A jury may find PETA owed Yerk a fiduciary duty based on the confidentiality agreement, the Fort Myers court ruled, but Yerk cannot claim negligence since he did not suffer any physical injury or illness because of the alleged breach.

PETA had also argued that it would have broken the alleged promise to comply with a demand by law enforcement.

But Steele disagreed, noting that "a jury could find that PETA had superior knowledge regarding the scope of its confidentiality agreement and knew or should have known that promising absolute anonymity was a false promise."

Steele left it up to a jury to decide whether Yerk's resignation was reasonably foreseeable to PETA and whether PETA had caused his employment-related damages.

The court denied PETA's motion for reconsideration on Dec. 1.

In a separate order, Steele agreed to exclude testimony by Yerk's expert witness, finding that his estimate of Yerk's employment-related damages was unsupported and failed to use reliable methodology.

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