Whistleblower Digest
BURDEN OF PROOF AND PRODUCTION
DUAL MOTIVE
[Last Updated March 18, 2007]
ADMINISTRATIVE LAW JUDGE DECISIONS
DUAL MOTIVE; ARTICULATION OF LEGITIMATE, NONDISCRIMINATORY MOTIVE DOES NOT END ANALYSIS WHERE COMPLAINANT HAD ESTABLISHED THAT HER PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN HER DISCHARGE
In Platone v. Atlantic Coast Airlines , 2003-SOX-27 (ALJ Apr. 30, 2004), the ALJ found that the Respondent had articulated a legitimate, nondiscriminatory reason for terminating the Complainant's employment -- that the Complainant, who was in a trust position as Manager of Labor Relations, had failed to disclose a romantic relationship with a former union official. However, since the Complainant had proved that her protected activity of reporting her reasonable belief that there had been a pattern of improper flight loss payments to employees (a means of paying employees who missed flight assignments to perform official union functions) was a contributing factor in her discharge, the dual or mixed motive analysis required that the Respondent establish by clear and convincing evidence that the adverse employment action would have been taken on the basis of the legitimate motive alone. The ALJ, weighing the evidence of record, found that the Complainant's immediate supervisor had initiated the process that resulted in the Complainant's suspension and termination in order to remove what he perceived to be an obstacle to successful cost-cutting concessionary negotiations with the union, i.e., making too much noise about apparently improper flight loss payments.
DAMAGES; MCKENNON AFTER-ACQUIRED EVIDENCE RULE NOT APPLICABLE TO MIXED MOTIVE CASE
In Platone v. Atlantic Coast Airlines Holdings, Inc. , 2003-SOX-27 (ALJ July 13, 2004), the Respondent asserted that the Complainant was not entitled to any damages pursuant to McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995). The ALJ found that McKennon was not applicable. In Platone the ALJ had found that the Respondent had mixed motives for dismissing the Complainant, and that the Respondent had failed to carry its burden to show by clear and convincing evidence that it would have suspended and terminated the Complainant on the legitimate, non-discriminatory ground alone. In McKennon , later discovered evidence established that the employer would have terminated the plaintiff's employment on the legitimate ground alone if the employer had known of it at the time the plaintiff was discharged.
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