The Administrative Review Board’s decision in Powers v. Union Pacific Railroad is a significant victory for whistleblowers in that it establishes a favorable burden of proof for whistleblowers under the Sarbanes-Oxley Act and similar whistleblower protection laws. Zuckerman Law, a Washington DC firm that represents whistleblowers nationwide, submitted an amici curiae brief on behalf of the National Whistleblowers Center, National Employment Lawyers Association, Teamsters for a Democratic Union, and Truckers Justice Center, and Firm Principal Jason Zuckerman participated in oral argument.
Powers clarifies several key principles governing a whistleblower’s burden of proof on the element of causation:
- The “contributing factor” standard was employed to remove any requirement on a whistleblower to prove that protected activity was a ‘”significant’, ‘motivating’, ‘substantial’, or ‘predominant’ factor in a personnel action in order to overturn that action.” Consequently, “[a] complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent’s reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant’s protected’ activity.”
- The relevance of evidence to a complainant’s proof of contribution is legally distinguishable from a respondent’s evidence in support of the statutory defense that it would have taken the personnel action at issue absent the protected activity, which must be proven by clear and convincing evidence.
- Where the trier of fact determines that the protected acts are closely intertwined with the adverse action taken, the respondent “bears the risk that the influence of legal and illegal motives cannot be separated.” Abdur-Rahman, ARB No. 08-003, slip op. at 12.
- Since complainant’s burden of proof does not require a showing of retaliatorymotive by the employer, evidence that the employer lacked a retaliatory motive for the adverse action taken does not rebut complainant’s evidence supporting contributing factor.
- The relevance of subjective witness statements for purposes of analyzing complainant’s showing of contributing factor, as a general matter, is highly questionable because “subjective criteria can be a ready vehicle for [discrimination].” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005); see also Miles v. M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985) (“subjective evaluations … provide a ready mechanism for … discrimination.”). Subjective standards are difficult for courts to evaluate and difficult for plaintiffs to rebut, and their use in employment decisions should be viewed with suspicion. See Hill v. Seaboard Coast Line R. Co., 885 F.2d 804, 808-09 (11th Cir. 1989).
Once the whistleblower proves “contributing factor” causation by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected conduct.
Washington DC whistleblower law firm Zuckerman Law represents whistleblowers nationwide under federal whistleblower protection laws, including the Whistleblower Protection Act, the Sarbanes-Oxley whistleblower law, and the False Claims Act and NDAA anti-retaliation provisions.
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