The basic law setting forth an employee’s prima facie case necessary to withstand an employer motion to dismiss or for summary judgment is set forth in:

• Kohn, Concepts and Procedures in Whistleblower Law (Quorum Books: Westport, CT 2001), pp. 238–79

Cases setting forth a standard prima facie case in whistleblower or retaliation cases:

• Aka v. Washington, 156 F.3d 1284 (D.C. Cir. 1998); Housing Works v. City of New York, 73 F.Supp.2d 402 (S.D.N.Y. 1999)
• DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983)

The Supreme Court uses a similar evaluation process in discrimination cases:

• McDonnell Douglas v. Green, 411 U.S. 792 (1973)
• Curl v. Leroy Reavis and Iredell County, 740 F.2d 1323 (4th Cir. 1984) (example of a court review to determine whether the plaintiff qualified as an “employee” under the statute prior to proceeding to review other issues)
• NLRB v. Schrivener, 405 U.S. 117 (1972)
• Pettway v. American Cast Iron Pipe Co., 441 F.2d 998 (5th Cir. 1969) (determination of whether employee engaged in protected activity as a threshold legal issue)
• Frazier v. MSPB, 672 F.2d 150 (D.C. Cir. 1982) (key case defining proof necessary to demonstrate “knowledge”).
• Passaic Valley Sewerage Commissioners v. DOL, 992 F.2d 474 (3rd Cir. 1993) (Clean Water Act case on “good faith” whistleblowing referenced in SOX legislative history)
• Burlington Northern v. White, 548 U.S. 53 (2006) (landmark case on defining adverse action)
• Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (key case regarding evidence needed to demonstrate discriminatory motive necessary to survive a motion for summary judgment)

In Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the Court held that an employer cannot hide behind a layered decision-making process to escape liability for illegally firing an employee by claiming that the final decision maker was unaware of the protected activity or did not have discriminatory animus.

The exhaustion of administrative remedies doctrine was explained in:

• Brown v. GSA, 425 U.S. 820 (1976)

The doctrine was applied in Sarbanes-Oxley whistleblower cases in:

• Portes v. Wyeth, 06-cv-2689 (S.D. N.Y. 2007)
• Williams v. Boston Scientific, 08-cv-01437 (N.D. C
• alif. 2008)
• Curtis v. Century Surety, 08-16236 (9th Cir. 2009)

Under this doctrine, although an employee can eventually have a jury trial, he or she must utilize various administrative remedies in order to file a case in court.

Cases discussing the statute of limitations are located at:

• Rule 5, Trap #4

Although this rule is titled “Winning a Case,” a large number of whistleblower laws provide employees with an option of having their case heard before a jury or an administrative judge, specifically, numerous whistleblower laws as administered by the U.S. Department of Labor.

The decision as to whether or not to have a case heard before a judge or jury, or whether to have it tried within the Department of Labor before an Administrative Law Judge is a tactical decision based on numerous factors, including costs, the reputation of the respective judges, and the evidence that will be presented in any given case.

The bottom line is to pick the forum that will hear your case with ease, whether that is a state court, a federal court, or an administrative agency.