Most of the corporate whistleblower protection laws enforced by OSHA, including the Sarbanes-Oxley whistleblower protection law, require the whistleblower to prove that the protected whistleblowing was a “contributing factor” in the employer’s decision to take an adverse employment action. What is “contributing factor” causation?
A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Powers v. Union Pacific Railroad Co., ARB No. 13-034, slip op. at 11, ALJ No. 2010-FRS-30, (ARB Mar. 20, 2015) (en banc). The standard originated under the Whistleblower Protection Act (“WPA”), which prohibits retaliation against federal employees. Before the WPA, a federal employee had to show that her protected disclosure “constituted a ‘significant’ or ‘motivating’ factor in the agency’s decision to take the personnel action.” Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (citing Clark v. Dep’t of the Army, 997 F.2d 1466, 1469–70 (Fed. Cir. 1993)). But by enacting the WPA, Congress “substantially reduc[ed]” a whistleblower’s burden and sent “a strong, clear signal to whistleblowers that Congress intends that they be protected from any retaliation related to their whistleblowing.” Id. (citing 135 Cong. Rec. 5033 (1989) (Explanatory Statement on S. 20)). Congress intended specifically to overrule case law that required a whistleblower to prove that his protected conduct was a “significant,” “motivating,” “substantial,” or “predominant” factor in a personnel action in order to overturn that action. Id.
In light of the standard’s meaning, “[a] complainant need not show that protected activity was the only or most significant reason for the unfavorable personnel action, but rather may prevail by showing that the respondent’s reason, while true, is only one of the reasons for its conduct, and another [contributing] factor is the complainant’s protected’ activity.” Powers, ARB Case No. 13-034, slip op. at 11; see Blackie v. D. Pierce Transp., Inc., ARB Case No. 13-065, ALJ No. 2011-STA-055, 2014 WL 3385883, at *6 (June 17, 2014) (citing Araujo, 708 F.3d at 158); Marano, 2 F.3d at 1141 (AIR 21 complainant “need not demonstrate the existence of a retaliatory motive . . . [or] that the respondent’s reason for the unfavorable personnel action was pretext”); DeFrancesco v. Union R.R. Co., ARB Case No. 10-114, ALJ No. 2009-FRS-009, 2012 WL 694502, at *3 (Feb. 29, 2012) (“The ALJ concluded that DeFrancesco failed to show that his protected activity was a contributing factor because he did not prove that his employer was motivated by retaliatory animus. This is legal error.”); Zinn v. Am. Commercial Lines Inc., ARB Case No. 10-029, 2012 WL 1143309, at *7 (Mar. 28, 2012) (“The ALJ also erred to the extent he required that Zinn show ‘pretext’ to refute [respondent’s] showing of nondiscriminatory reasons for the actions taken against her.”); Warren v. Custom Organics, ARB Case No. 10-092, ALJ No. 2009-STA-030, 2012 WL 759335, at *5 (Feb. 29, 2012) (“Under the 2007 amendment to the STAA burden of proof, an employee is not required to prove that his employer’s reasons for an adverse action were pretext, e.g., that the employer had an alternate, albeit improper, motive for the adverse action, to prevail on a complaint.”); Klopfenstein v. PCC Flow Tech., Inc., ARB Case No. 04-149, ALJ No. 04-SOX-11, 2006 WL 3246904, at *13 (May 31, 2006) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (“[A] complainant is not required to prove pretext.”). Likewise, an employee need not prove retaliatory motive to make his contributing factor showing. See Powers, ARB Case No. 13-034, slip op. at 19–20, 28. In Powers, the ALJ concluded that the employee failed to make his contributing factor showing. The ALJ committed reversible error in reaching this determination because he credited and relied on testimony from the employers’ witnesses that they acted on non-retaliatory motives. Id. at 28.
In sum, the burden to prove causation in a SOX whistleblower case is not onerous. Indeed, temporal proximity alone can be sufficient proof in certain cases.
Ongoing litigation against the respondent can establish causation. In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), the ARB found that there was a substantial basis for the ALJ “to reasonably conclude [that complainant’s] ongoing litigation against the company: 1) remained a persistent presence in the minds of the actors in this case; 2) had ongoing ramifications for March; and 3) helped shape how events unfolded.” Slip op. at 12. The ARB noted that this analysis was consistent with its decision in Brucker v. BNSF Railway Co., ARB No. 2014-0071, ALJ No. 2013-FRS-00070, slip op. at 12 (ARB July 29, 2016), in which the ARB stated: “Ongoing litigation kept the protected activity ‘fresh as the events in the case unfolded’ and led to ‘continuing fallout’ for the complainant.” Id. (quoting Carter v. BNSF Ry. Co., ARB Nos. 2014-0089, 2015-0016, -0022, ALJ No. 2013-FRS-00082, slip op. at 4 (ARB June 21, 2016)).
Zuckerman Law Amicus Curiae Brief Filed on Behalf of Senator Wyden and Representative Speier Clarifying the Contributing Factor Causation Standard
In July 2021, whistleblower protection law firm Zuckerman Law filed this amicus curiae brief in the Second Circuit concerning the appropriate causation standard under federal whistleblower protection laws.AMICUS CURIAE BRIEF OF SENATOR RON WYDEN AND REPRESENTATIVE JACKIE SPEIER AND IN SUPPORT OF THE PLAINTIFF-APPELLEE-CROSS-APPELLANT
SOX Whistleblower Retaliation
The experienced and effective Sarbanes-Oxley whistleblower protection lawyers at Zuckerman Law have extensive experience representing corporate whistleblowers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area in the 2020 edition of “Best Law Firms.”
To learn more about whistleblower rights and protections, contact Zuckerman Law at 202-262-8959.