Whistleblower Retaliation Archives

What are some methods to prove pretext in retaliation and discrimination cases?

Methods of proving that an employer’s reason for taking an adverse employment action is false include: A significant contradiction between yearly performance evaluations, and the proffered … Continued

Is a Sarbanes-Oxley whistleblower required to prove fraud?

Is a SOX whistleblower required to prove shareholder fraud? A SOX complainant need not allege or prove shareholder fraud to receive SOX’s protection. SOX was … Continued

Can OSHA order the reinstatement of a Sarbanes-Oxley whistleblower?

If OSHA determines there is “reasonable cause” to believe the complaint has merit, with limited exceptions “it shall issue” a preliminary order restoring the complainant to his or her employment status and requiring the employer to take affirmative action to abate the violation. 49 U.S.C. § 42121(b)(3)(B); 29 CFR § 1980.105(a)(1). Reinstatement orders are immediately effective and are not stayed pending the resolution of any objections or appeal. See 49 U.S.C. § 4212 (b)(2)(A).

Does subjecting an employee to heightened scrutiny evidence retaliation?

Jumping on the first instance of poor performance or misconduct indicates pretext, especially where the employee has a record of strong performance prior to engaging in protected activity.

Must a whistleblower prove retaliatory motive in a DOL whistleblower retaliation case?

A SOX whistleblower need not demonstrate the existence of a retaliatory motive on the part of the employer to establish that protected activity was a contributing factor to the personnel action. But evidence of a retaliatory motive, e.g., statement of retaliatory animus or resentment of the complainant’s whistleblowing, is relevant circumstantial evidence to prove retaliation.

Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower protection case?

Motive for engaging in protected activity not relevant in a Sarbanes-Oxley whistleblower-protection case A whistleblower’s motive for engaging in protected conduct is irrelevant. See Henderson … Continued

Why should courts be skeptical of an adverse employment action taken based on subjective criteria?

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); see also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 1009 (1988) (Blackmun J., concurring) ( “Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII’s goal of eradicating discrimination in employment.”); Miles v. M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985) (“subjective evaluations . . . provide a ready mechanism for … discrimination.”).

Is an employer’s attempt to stop a corporate whistleblower from blowing the whistle to the government actionable retaliation?

Yes, an employer’s effort to force a corporate whistleblower to waive the non-waivable right to report unlawful conduct to the government is actionable retaliation. In … Continued

Is a lawsuit against a whistleblower actionable retaliation?

Suing a Whistleblower Can Give Rise to a Retaliation Claim Filing a lawsuit without a sufficient factual basis to dissuade a whistleblower or discrimination … Continued

Is selective application of policy or disparate treatment evidence of retaliation?

Disparate treatment in the selective application of policy is powerful evidence of reprisal. See, e.g., Vieques Air v. DOL, 437 F.3d 102 (1st Cir. 2006) … Continued

Does an employer’s failure to follow its personnel policies and practices prove retaliation?

An employer’s departure from its customary practice or its personnel policies is relevant circumstantial evidence of retaliation. In Hobgood v. Illinois Gaming Bd., 731 F.3d … Continued

Where can a Sarbanes-Oxley whistleblower appeal a decision of the Administrative Review Board?

A SOX whistleblower may, within 60 days of the ARB’s issuing its final decision, file a petition for review to the U.S. Court of Appeals in the circuit in which the alleged SOX violation occurred, or in the circuit in which the complainant resided on the date of the alleged violation.

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