Whose Burden is it Anyway?

Last month, the Department of Labor’s Administrative Review Board convened a rare oral argument in Powers v. Union Pacific Railroad Company. The issue is whether the ARB had articulated the correct standard for “contributing factor” causation in Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).


Fordham dealt with the law on burdens of proof in whistleblower retaliation cases arising under modern statutes. In such cases, the employee must first demonstrate that his or her disclosure of employer wrongdoing contributed to the employer’s subsequent actions against the employee. Then, the employer must prove that it would have taken the same actions regardless of the employee’s disclosures.


In Fordham, the statute in question was the Federal Rail Safety Act, and the issue was whether the employer’s evidence of a non-discriminatory reason can be considered as part of the determination of the “contributing factor,” or whether the employer’s evidence must be weighed for “clear and convincing” evidence that it would have taken the same action even if no protected activity had occurred. Seemingly a purely academic question, in fact this issue strikes at where whistleblower claims can be the most vulnerable. Employers dwarf the whistleblower in their ability to access documents and resources – in essence, to present evidence. This is why Congress decided to hold employers to the higher “clear and convincing” standard. Congress recognized that “The agency controls most of the cards—the drafting of the documents supporting the decision, the testimony of witnesses who participated in the decision, and the records that could document whether similar personnel actions have been taken in other cases.” Whitmore v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012), citing 135 Cong. Rec. H747-48 (daily ed. Mar. 21, 1989). Yet, judges often have misapplied this standard by allowing employers to smuggle its “independent justification” evidence into the consideration of the whistleblower’s much lighter contributing factor standard. In Fordham, the majority held that:
only an [employee’s] evidence may be considered at the “contributing factor” causation stage; that the employer’s evidence in support of lawful, non-retaliatory reasons for its action must await assessment under the ‘clear and convincing’ evidentiary standard after it is found that [the employee] has met his or her initial burden of proof.”
at 16.
In Powers, the employer argued for a lesser burden. Union Pacific and its amici contended during oral argument that Fordham excludes the employer’s evidence during the contributing factor stage, which works an injustice to employers. This is simply not true. All that Fordhamsays, and all the Congress says, is that the judge must hold the employer’s evidence to the heightened clear and convincing standard whenever he or she considers that evidence. Employers may indeed present relevant evidence at any stage – for example, rebuttal evidence to the employee’s contributing factor evidence. However, the judge must be scrupulous in holding that rebuttal evidence to the clear and convincing standard of proof. To do otherwise would vitiate the value of having the two different standards of proof. Congress deliberately subjected employers to a higher standard in direct recognition of the usefulness of whistleblowers and their disclosures about dangers to the public. The Board in Powers should uphold the congressional intent and its correct holding in Fordham.


You can find the Fordham decision and Powers briefs at: