Whistleblower Digest
BURDEN OF PROOF AND PRODUCTION
PRETEXT
[Last Updated March 18, 2007]
ADMINISTRATIVE LAW JUDGE DECISIONS
PRETEXT; FACT THAT "SHOP TALK" IS COMMON IN THE WORK PLACE DOES NOT ESTABLISH THAT IT WAS PRETEXT TO DISCIPLINE THE COMPLAINANT FOR SENDING AN E-MAIL CONTAINING VULGAR LANGUAGE TO A CORPORATE OFFICER
In Grant v. Dominion East Ohio Gas , 2004-SOX-63 (ALJ Mar. 10, 2005), the Complainant sent an e-mail containing vulgar language to a corporate officer purportedly to protest an Employee Assistance Program initiative. The Respondent's stated ground for suspending the Complainant was that this e-mail violated company policy about e-mail communications. The Complainant argued that this was a pretext. He presented evidence that "shop talk" was common at the work place and that others who sent vulgar or sexually charged e-mails had not been disciplined. The ALJ recognized (and the Respondent conceded) that "shop talk" was part of the culture at the work place, but distinguished company tolerance for that culture from sending a vulgar and sexually charged e-mail to a corporate officer who was clearly offended by the e-mail. The ALJ found that no evidence was presented that any employee ever used "shop talk" or other inappropriate language around corporate officers. The ALJ observed that the corporate officer initiated a disciplinary action the same afternoon that he received the e-mail and that the disciplinary procedure had been followed precisely. There was no evidence of any events occurring close to the time of disciplinary proceeding suggesting that the charge was conjured up to cover a plan to suspend the Complainant based on protected activity.
PRETEXT; PROTECTED ACTIVITY AS CONTRIBUTING FACTOR TO ADVERSE EMPLOYMENT ACTION; ALLEGED INSUBORDINATION SET UP AS A PRETEXT TO DISCRIMINATION
In Welch v. Cardinal Bankshares Corp. , 2003-SOX-15 (ALJ Jan. 28, 2004), the ALJ found that Respondent's argument that the Complainant (the Respondent's Chief Financial Officer) was suspended and later discharged solely because he refused to meet with outside auditors to discuss issues the Complainant had raised without a personal attorney present was not convincing. Rather, the ALJ found that the evidence established that the "investigation" of the Complainant's complaints was orchestrated by the President/CEO and Chairman, acting in concert with the outside auditors, in such a manner as to justify the Complainant's termination. Thus, the purported "insubordination" of refusing to appear without a personal attorney present was mere pretext.
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