Nuclear and Environmental Whistleblower

In Bobreski v. J. Givoo Consultants, Inc., ARB No. 09-057, ALJ No. 2008-ERA-3 (ARB June 24, 2011), the ARB described how an ALJ must consider the record as a whole, and not just view the evidence in fragments, when deciding the issue of causation:

When the employee presents a case based on indirect or circumstantial evidence, as in this case, each piece of evidence should be examined with all the other evidence to determine if it supports or detracts from the employee’s claim that his protected activity was a contributing factor. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence. Logically, as was done in this case, the ALJ may examine each piece of circumstantial evidence to determine how substantial it is. Then the ALJ must weigh the circumstantial evidence as a whole to properly gauge the context of the adverse action in question. Taken as a whole, the evidence may demonstrate that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee’s protected activity. Conversely, the evidence as a whole may demonstrate that none of the decision-makers knew about the employee’s protected activity and thereby break the causation chain between the protected activity and the final adverse action.

Permanently fragmenting circumstantial evidence can distort the greater context. For example, terminating an employee’s employment for being late to work obviously could be a valid employment decision considered alone. It becomes suspicious when other employees committed the same infraction and were not fired. The same termination becomes even more suspicious if it followed days after the affected employee disclosed corporate fraud. Suspicion will increase even further if the company had not applied the punctuality rule in years. With the introduction of each piece of circumstantial evidence, the focus remains on the proverbial preponderance gauge to see which way it ultimately moves, toward or away from a conclusion of discrimination. The ultimate conclusion could be wrong if the ALJ either mischaracterizes each piece of evidence or fails to ultimately view them as a whole on the same scale. In the end, the ALJ must look at all of the circumstantial evidence as a whole.

USDOL/OALJ Reporter at 13-14 (footnote omitted). The ARB added that evidence of pretext should also be considered in conjunction with evidence of temporary proximity and circumstantial evidence of causation:

In addition to or in conjunction with temporal proximity evidence and other circumstantial evidence in this case, an employee can prove or buttress a whistleblower claim by proving that the employer’s proffered reasons were pretextual (not credible). When the proffered reasons for the adverse action are proven to be false, this evidence coupled with the complainant’s evidence that he was qualified, applied, and was rejected suspiciously for the job in question may permit the trier of fact to find discrimination. Pretext can be demonstrated in many ways. One way is by demonstrating that the proffered reasons were conspicuously missing from previous documentation. Shifting explanations could also constitute evidence of pretext. Vague and subjective reasons about personality issues may also suggest that the employer’s reasons are pretextual or in reality complaints about whistleblowing. In the end, all pretext evidence should be weighed with all of the circumstantial evidence to determine the issue of causation after an evidentiary hearing.

USDOL/OALJ Reporter at 18-19 (footnotes omitted).

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