In a major en banc decision, the Administrative Review Board clarifies the burdens of proof applicable to ALJ whistleblower trials and explains how to apply that standard. Palmer v. Canadian National Railway. This is a must read decision for anyone interested in Federal Rail Safety Act whistleblower matters, but here are some of the highlights:
Proof of the Contributory Factor Element
the first step of the AIR-21 whistleblower protection provision’s burden-of-proof framework requires the complainant to prove, by a preponderance of the evidence, that protected activity was a contributing factor in the unfavorable personnel action. It further concludes that there are no limitations on the evidence the fact finder may consider in making that determination, and where the employer’s theory of the case is that protected activity played no role whatsoever in the adverse action, the ALJ must consider the employer’s evidence of its non-retaliatory reasons in order to determine whether protected activity was a contributing factor in the adverse action.
However, the level of causation that a complainant needs to show contributing factor is extremely low: the protected activity need only be a “contributing factor” in the adverse action. Because of this low level, ALJs should not engage in any comparison of the relative importance of the protected activity and the employer’s non-retaliatory reasons. Since in most cases the employer’s theory of the facts will be that the protected activity played no role in the adverse action, the ALJ must consider the employer’s non-retaliatory reasons, but only to determine whether the protected activity played any role at all.
We have said it many a time before, but we cannot say it enough: A contributing factor is ‘any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.’ We want to reemphasize how low the standard is for the employee to meet, how broad and forgiving it is. Any factor really means any factor. It need not be significant, motivating, substantial or predominant, it just needs to be a factor. The protected activity need only play some role, and even an [in]significant or [in]substantial role suffices.
Importantly, if the ALJ believes that the protected activity and the employer’s non-retaliatory reasons both played a role, the analysis is over and the employee prevails on the contributing-factor question. Thus, consideration of the employer’s non-retaliatory reasons at step one will effectively be premised on the employer pressing the factual theory that non-retaliatory reasons were the only reasons for its adverse action. Since the employee need only show that the retaliation played some role, the employee necessarily prevails at step one if there was more than one reason and one of those reasons was the protected activity.
We cannot emphasize enough the importance of the ALJ’s role here: it is to find facts. The ALJ must consider all the relevant, admissible evidence and make a factual determination, under the preponderance of the evidence standard of proof, about what happened: is it more likely than not that the employee’s protected activity played a role, any role whatsoever, in the adverse personnel action? If yes, the employee prevails at step one; if no, the employer prevails at step one. If there is a factual dispute on this question, as is usually the case, the ALJ must sift through the evidence and make a factual determination. This requires the ALJ to articulate clearly what facts he or she found and the specific evidence in the record that persuaded the ALJ of those facts.
Proof of Railroad’s Affirmative Defense
The second step involves a hypothetical question about what would have happened if the employee had not engaged in the protected activity: in the absence of the protected activity, would the employer nonetheless have taken the same adverse action anyway? On that question, the employer has the burden of proof, and the standard of proof is by clear and convincing evidence. For the ALJ to rule for the employer at step two, the ALJ must be persuaded, based on a review of all the relevant, admissible evidence, that it is highly probable that the employer would have taken the same adverse action in the absence of the protected activity. . . . It is not enough for the employer to show that it could have taken the same action; it must show that it would have.