RULE 34

Prove Motive and Pretext

Introduction

When blowing the whistle, the company you reported may deny any retaliation against you, such as firing, suspension, demotion, or transfer. Instead, they may claim that your performance declined around the time you exposed their wrongdoing.

However, courts have recognized pre-text as evidence of adverse actions, such as a sudden drop in performance rating after blowing the whistle or receiving a pay increase before the disclosure followed by adverse action. To prove retaliation, consider using Rule 34.

Resources

Checklist 4, found in Rules for Whistleblowers, identifies numerous court precedents regarding the types of proof necessary for an employee to demonstrate improper motive or pretext in a retaliation case.

“[E]vidence that a defendant’s explanation for an employment practice is ‘unworthy of credence’ is one form of circumstantial evidence that is probative of intentional discrimination.” — Justice Thomas, Desert Palace v. Costa (2003)

Quick Links

Key Cases

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (circumstantial evidence used to prove discrimination)
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)
Burrage v. United States, 134 S. Ct. 881 (2014)
Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009)
Collins v. Beazer Homes, 334 F.Supp. 2d 1365 (N.D. Georgia 2004) (burden of proof; inclusion of state claim; protected activity)
Haley v. Retsinas,138 F.3d 1245 (8th Cir. 1998)
Frobose v. American Savings and Loan, F. 3d 602 (7th Cir. 1998)
Staub v. Proctor Hospital, 421 Fed. Appx. 647 (retaliation law created tort-like remedy and permitted court to hold hospital liable based on animus of supervisor who did not make the ultimate decision to fire employee)
Marano v. DOJ, 2 F.3d 1137, 1140 (Fed. Cir. 1993) and Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (Standard of Proof).
Chambers v. Department of Interior, 602 F.3d 1370 (Fed. Cir. 2010) (application of “Carr” factors to mitigate level of punishment in whistleblower cases).
Khandelwal v. Southern Calf. Ed., 97-ERA-6 (ARB, March 31, 1998) (demonstrating underlying violation, evidence of motive)

Frequently Asked Questions

Related Rules

RULE 32
Your Disclosures Must be Protected Under Law
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RULE 31
Winning a Case
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