USDOL/OALJ STAA Whistleblower Digest
DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION H -- CLEAR AND CONVINCING EVIDENCE

[Last updated June 17, 2013]

IV. Burden of proof and production

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H. Clear and Convincing Evidence

[STAA Digest IV A 1]
UNDER 2007 AMENDMENTS TO STAA�S BURDEN OF PROOF FRAMEWORK, THREE-STEP MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK IS NO LONGER APPLICABLE; THE STAA AMENDMENTS EMPLOY A TWO-STEP ANALYTICAL PROCESS: (1) WHETHER THE COMPLAINANT HAS MET HIS BURDEN OF ESTABLISHING THAT PROTECTED ACTIVITY WAS A "CONTRIBUTING FACTOR," AND IF SO, (2) WHETHER THE RESPONDENT CAN ESTABLISH BY "CLEAR AND CONVINCING EVIDENCE," THAT IT WOULD HAVE TAKEN THE SAME ADVERSE PERSONNEL ACTION HAD THERE BEEN NO PROTECTED ACTIVITY

In Beatty v. Inman Trucking Management, Inc. , the ALJ applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) Title VII burden shifting paradigm to the Complainants� STAA blacklisting complaint, and denied the complaint based on his finding that the Complainants had not established by a preponderance of the evidence that the Respondent's articulated, legitimate non-discriminatory reason for filing negative DAC reports about the Complainants was pretext. On appeal, the ARB found that the McDonnell Douglas burden of proof framework was supplanted by the 2007 amendments to the STAA adopted as part of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 7, 2007). That Act imposed the legal burdens of proof and framework imposed by AIR21:

Under the AIR 21 standard, a new burden of proof framework is established in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a "contributing factor" in the alleged adverse personnel action. Should the complainant meet the "contributing factor" burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by "clear and convincing evidence" that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB described the framework:

   The AIR 21 burden of proof framework is far more protective of complainant-employees and much easier for a complainant to satisfy than the McDonnell Douglas standard. As the Federal Circuit explained in Marano v. Dep't of Justice , the "contributing factor" standard was "intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a 'significant�, �motivating�, 'substantial�, or �predominant� factor in a personnel action in order to overturn that action." The complainant need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action, that the respondent's reason for the unfavorable personnel action was pretext, or that the complainant's activity was the sole or even predominant cause. The complainant "need only show that his protected activity was a �contributing factor� in the retaliatory discharge or discrimination." A "contributing factor," the ARB has repeatedly noted, is "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the [adverse personnel] decision." Thus, for example, a complainant may prevail by proving 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." Moreover, the complainant can succeed by providing either direct proof of contribution or indirect proof by way of circumstantial evidence.

   If the complainant proves that his/her protected activity was a contributing factor in the unfavorable personnel action, the burden shifts to the respondent, in order to avoid liability, to prove "by clear and convincing evidence" that it would have taken the same adverse action in any event. "The �clear and convincing evidence� standard is the intermediate burden of proof, in between �preponderance of the evidence� and �proof beyond a reasonable doubt.� To meet the burden, the employer must show that �the truth of its factual contentions is highly probable.�" Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain."

USDOL/OALJ Reporter at 8-9 (footnotes omitted). The ARB acknowledged that it had sanctioned continued use of the Title VII analytical framework in past decisions, but concluded that use of the Title VII methodology had caused confusion and was legal error on its part. The ARB stated that federal appellate courts have recognized that "the statutory adoption of the new burdens of proof in several whistleblower case types has been was coupled with a new analytical framework." Id . at 10. See Stone & Webster Eng�g Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997) (ERA recodification); Allen v Administrative Review Board , 514 F.3d 468 (5th Cir. 2008) (analyzing independent burden-shifting framework of SOX and AIR21); Araujo v. New Jersey Transit Rail Operations, Inc. , 708 F.3d 152, 157 (3d Cir. 2013) (in AIR 21 Congress set forth, in place of the McDonnell Douglas burden-shifting framework, a two-part burden-shifting test); Bechtel v. Admin. Review Bd., U.S. Dep't of Labor , 710 F.3d 443, 448 (2d Cir. 2013) (in SOX cases, burden-shifting scheme has no basis in relevant law or regulation). The Board stated:

    The Title VII framework imposes a three-step analytical process, beginning by requiring from the complainant an initial "prima facie" showing which, if met, is followed by a rebuttal showing by the respondent which, if met, returns the ultimate burden of proof again to the complainant. The STAA amendments instead impose a two-step analytical process that focuses first on whether the complainant has met his burden of establishing that protected activity was a "contributing factor," which entitles the complainant to relief unless the respondent can establish in rebuttal, by "clear and convincing evidence," that it would have taken the same adverse personnel action had there been no protected activity.

USDOL/OALJ Reporter at 10.

[STAA Digest IV H]
CLEAR AND CONVINCING EVIDENCE; COMPLAINANT'S VIOLATION OF RESPONDENT'S ZERO TOLERANCE POLICY REQUIRING USE OF FILTRATION EQUIPMENT WHEN LOADING WATER

In Coryell v. Arkansas Energy Services, LLC , ARB No. 12-033, ALJ No. 2010-STA-42 (ARB Apr. 25, 2013), the ARB found that substantial evidence supported the ALJ's determinations that the Complainant failed to establish that his protected activity did not contribute to termination of his employment where witness testimony and documentation established that company managers did not know about the Complainant's DOT complaint when they fired him. The ARB also affirmed the ALJ's finding that the Respondent established by clear and convincing evidence that it would have fired the Complainant even absent the protected activity, due to the Complainant's failure to comply with the Respondent's zero tolerance policy requiring the use of filtering equipment when its drivers load water into trucks. Evidence of record and credible manager testimony was found by the ALJ to establish that the zero tolerance policy had been communicated to all employees. The policy was in response to requirements of the Respondent's primary customer, which was a shale plate gas drilling company.