DATE: April 20, 1995
CASE NO. 89-SDW-1
IN THE MATTER OF
PAULINE EWALD,
COMPLAINANT,
v.
COMMONWEALTH OF VIRGINIA,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
This case, which is before me for review, was brought
pursuant to the environmental whistleblower provisions of the
Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. § 9610 (1988) (CERCLA); the Resource
Conservation and Recovery Act, 42 U.S.C. § 6971 (1988)
(RCRA); the Clean Water Act, 33 U.S.C. § 1367 (1988) (CWA);
and the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)
(1988) (SDWA)(the environmental whistleblower provisions).
Complainant Pauline Ewald alleged that she was fired by
Respondent Commonwealth of Virginia (Virginia) in retaliation for
engaging in activity protected under the environmental
whistleblower provisions, and that Virginia also blacklisted her
as a result of her protected activity. Following substantial
discovery, Virginia filed a motion to dismiss on the ground that
Ewald was collaterally estopped from litigating her claim as a
result of a final order issued in another action brought by Ewald
in the United States District Court for the Eastern District of
Virginia. Ewald v. Commonwealth of Virginia Department of
Waste Management, CA-90-494-R (E.D. Va. April 22, 1991)
(Ewald I). The Administrative
[PAGE 2]
Law Judge (ALJ) subsequently issued a "Recommended Order Granting
Summary Decision and Dismissing" (R. O.). For the reasons that
follow I reject the ALJ's recommended decision and remand the
case for further proceedings consistent with this decision.
BACKGROUND
Pauline Ewald was hired by Virginia's Department of Waste
Management in September 1986 to be Manager of the Superfund Pre-
Remedial Program. Ewald I, Memorandum Decision, April 22,
1991, at 2; Ewald v. Department of Waste Management, No.
91-1583 (4th Cir. July 22, 1992), slip op. at 3 (Ewald
II). [1] Her second level supervisor was Cynthia Bailey.
Ewald II at 3. In April 1987 Dr. K.C. Das became Ewald's
immediate supervisor. Ewald I at 4. In August 1987, Das
gave Ewald a performance evaluation rating of 23 out of 50, just
above minimally satisfactory. Ewald II at 3. In November
1987 Das issued Ewald the first of several notices regarding her
performance and conduct on the job. Id. at 3-4. On August 29, 1988, Das issued the last of these notices,
which also constituted a notice of termination. Id. at 4.
Within 30 days of her termination, Ewald filed a complaint
with the Wage and Hour Division of the Department of Labor,
alleging that she was retaliated against and fired as a
consequence of her internal and external complaints about
Virginia's handling of various aspects of the superfund program.
The Wage and Hour investigator determined that Ewald was
terminated because of preexisting employment problems, and not
because of her protected activity. Ewald requested a hearing,
and this proceeding followed.
In August 1990, while her Department of Labor case was still
in the discovery stage, Ewald filed a pro se complaint in
the United States District Court for the Eastern District of
Virginia alleging, among other things, that Virginia had
terminated her in violation of her constitutional rights of
freedom of speech and association (Ewald I). Virginia
filed a motion for summary judgment, attaching, among other
things, affidavits of Bailey and Das, as well as the notices that
had been issued to Ewald prior to her termination. Ewald
opposed the motion, attaching an affidavit of her own. The
district court heard argument on the motion on April 10, 1991,
and announced from the bench its determination that Ewald had not
been discharged in violation of the First Amendment. Transcript
of Hearing, Ewald I, April 10, 1991, at 15. On April 22, 1991, the district court issued a memorandum
decision granting Virginia's motion for summary judgment. The
district court concluded that even if Ewald's speech was
protected under the First Amendment, that speech was not the
"but-for" cause of her termination. The court relied on the
Fourth Circuit's standard in Huang v. Board of Governors of
the
[PAGE 3]
Univ. of N.C., 902 F.2d 1134, 1140 (1990), a First Amendment
employment case. In Huang the court of appeals held that
summary judgment adverse to the plaintiff is improper:
only if the record reflects that he made a statement on
a matter of public concern, that this expression was
the "but for" cause of [the alleged adverse action],
and that the [adverse action] . . . deprived him of a
valuable benefit.
Huang v. Board of Governors of the Univ. of N.C.,
902 F.2d at 1140; quoted in Ewald I at 17. The Ewald
I court emphasized that the Fourth Circuit's "but-for" test
is "rigorous":
[I]t is not enough that the protected expression played
a role or was a motivating factor in the retaliation;
claimant must show that "but for" the protected
expression the employer would not have taken the
alleged retaliatory action.
Ewald I at 17. Applying the principles of Huang to
Ewald's case, the court ruled:
For summary judgment purposes, the court accepts that
Ewald spoke on matters of public concern at some time
before her discharge. The Court nevertheless finds no
material dispute that such speech was not the
"but for" cause of the discharge.
Memorandum at 18. The district court therefore dismissed Ewald's
complaint. Thereafter, Virginia filed a motion to dismiss Ewald's
whistleblower complaint before the Department of Labor on the
ground that Ewald was collaterally estopped from relitigating the
issue whether she was retaliated against as a result of her
protected activity. Virginia argued that the protected activity
asserted by Ewald for First Amendment purposes in Ewald I
was the same as the protected activity asserted in her
whistleblower claim, and that therefore she was estopped from
relitigating the issue.
While Virginia's motion was pending before the ALJ, the
Fourth Circuit issued its decision rejecting Ewald's appeal of
Ewald I. The Court of Appeals reaffirmed its holding in
Huang and agreed "with the district court's finding that
Ewald met only the first two prongs of the Huang test, and
that her claim failed to meet the 'but for' prong of that test."
Ewald II, slip op. at 7.
Thereafter, the Department of Labor ALJ issued a decision
recommending that I grant Virginia's motion to dismiss. The ALJ
held that the issues in the cases were identical, that the issue
[PAGE 4]
raised in this case was necessary to the decision in Ewald
I and II and that Ewald had a full and fair
opportunity to litigate the issue in Ewald I and
II. Therefore, the ALJ concluded that Ewald was
collaterally estopped from "relitigating the cause of her
discharge in the context of these administrative proceedings."
R. O. at 5. The ALJ noted that both the district court and the court of appeals applied the Huang "but-for"
test to the facts presented in Ewald I. R. O. at 1-3.
DISCUSSION
The ALJ improperly invoked the doctrine of collateral
estoppel (or as it is more commonly referred to today, issue
preclusion) in recommending that I dismiss Ewald's complaint.
For that reason I reject the recommendation and remand the case.
I. The Doctrine of Issue Preclusion.
"Issue preclusion" refers to the well established principle
that "a litigant in one lawsuit may not, in a later lawsuit,
assert the contrary of issues actually decided in and necessary
to the judgment of the first suit." Slayton v.
Willingham, 726 F.2d 631, 633 (10th Cir. 1984). See
also 18 Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction (Wright and Miller) § 4416, at 136
(1981). The doctrine "has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with
the same party or his privy and of promoting judicial economy by
preventing needless litigation." Parklane Hosiery v.
Shore, 439 U.S. 322, 326 (1979). [2] Issue preclusion has
been invoked in administrative adjudications as well as in court
cases. See Otherson v. DOJ, 711 F.2d 267, 272-273 (D.C.
Cir. 1983); Chisholm v. Defense Logistics Agency, 656 F.2d
42, 46 (3rd Cir. 1981). Application of the doctrine is
appropriate if certain conditions are met:
First, the issue must have been actually litigated,
that is, contested by the parties and submitted for
determination by the court . . . . Second, the issue
must have been "actually and necessarily determined by
a court of competent jurisdiction" in the first trial.
. . . Third, preclusion in the second trial must not
work an unfairness.
Otherson v. DOJ, 711 F.2d at 273 (citations omitted).
See R. O. at 6.
II. Whether Issue Preclusion is Appropriate in This
Case.
Ewald strongly disputes whether the issues presented in this
case were actually determined in Ewald I and II.
However, I need not decide that question, for this case falls
within a widely recognized exception to the application of issue
preclusion.
It is well established that a party should not be precluded
from litigating an issue in a second case where the burden of
[PAGE 5]
persuasion on the issue was greater in the first case. As the
D.C. Circuit has stated:
Cogent precedent supports the position "that preclusive
effect should not be given to the first determination
when the party sought to be concluded [sic] had a
heavier burden (or his adversary had a lighter burden)
in the first proceeding than in the second."
Whelan v. Abell, 953 F.2d 663, 668 (1992), quoting
Restatement (Second) of Judgments § 28 reporter's note
at 289. See One Lot Emerald Cut Stones v. United States,
409 U.S. 232, 235 (1972)(government's failure to prove an issue
beyond a reasonable doubt in a criminal prosecution does not
preclude a subsequent attempt to prove the same issue by a
preponderance of the evidence in a civil action); Newport News
Shipbuilding and Dry Dock v. Director, 583 F.2d 1273, 1278-
1279 (4th Cir. 1978) (failure to prove work-relatedness in a
proceeding before state industrial commission where standard was
preponderance of the evidence does not preclude second action
under Longshoremen's Act in which a less stringent evaluation of
the evidence applies). See also, Restatement (Second) of
Judgments § 28(4) (1982); [3] Wright and Miller §
4422 at 209-214; Young & Co. v. Shea, 397 F.2d 185, 189
(5th Cir. 1968); Guenther v. Holmgreen, 738 F.2d 879, 888
(7th Cir. 1984); S.E.C. v. Ridenour, 913 F.2d 515, 518
(8th Cir. 1990); Artukovic, v. Immigration and Naturalization
Service, 693 F.2d 894, 898 (9th Cir. 1982); Bulloch v.
Pearson, 768 F.2d 1191, 1193 (10th Cir. 1985).
Comment on the Restatement (Second) of Judgments gives the
rationale for this exception:
To apply issue preclusion in the cases described in
Subsection (4) would be to hold in effect, that the
losing party in the first action would also have lost
had a significantly different burden been imposed.
While there may be many occasions when such a holding
would be correct, there are many others in which the
allocation and weight of the burden of persuasion (or
burden of proof, as it is called in many jurisdictions)
are critical in determining who should prevail. Since
the process by which the issue was adjudicated cannot
be reconstructed on the basis of a new and different
burden, preclusive effect is properly denied.
Id. § 28 Comment f. As discussed below, with
regard to the issue whether Ewald was dismissed as a result of
engaging in protected activity, a very different and much more
stringent burden of proof was applied by the courts in Ewald I
and II than is applied in environmental whistleblower
protection cases. Therefore it
[PAGE 6]
would be error to use Ewald I and II to preclude
determination of that issue in this case.
In reaching its conclusion that Ewald was not dismissed as a
result of her protected activity, the Ewald I court relied
heavily upon the Fourth Circuit's "rigorous" Huang test of
causal relationship in First Amendment employment cases:
[I]t is not enough that the protected expression played
a role or was a motivating factor in the retaliation;
claimant must show that "but for" the protected
expression the employer would not have taken the
alleged retaliatory action.
Huang v. Board of Governors of the Univ. of N.C., 902 F.2d
1134, 1140 (1990); see Ewald I at 17.
Applying the Huang standard to Ewald's case, the district
court ruled:
For summary judgment purposes, the Court accepts that
Ewald spoke on matters of public concern at some time
before her discharge. The Court nevertheless finds no
material dispute that such speech was not the
"but for" cause of the discharge. Ewald v. Commonwealth of Virginia Department of Waste
Management, Memorandum at 18. On appeal, the Fourth Circuit
also applied the Huang test to Ewald's First Amendment
claim:
In Huang, this Court held that, in order to
prevail on a First Amendment whistle-blower claim,
the plaintiff must satisfy a three-prong test:
(1) plaintiff's expressions must have involved a matter
of public concern; (2) plaintiff must have been
deprived of some valuable benefit; and (3) "but for"
the protected expression, the employer would not have
taken the alleged retaliatory action.
* * * *
We agree with the district court's finding that Ewald
met only the first two prongs of the Huang test,
and that her claim failed to meet the "but for"
prong of that test.
Ewald II, slip op. 6-7 (emphasis supplied). Thus, it is
clear that the Fourth Circuit's requirements for proof of a First
Amendment claim in Ewald II placed the burden on the
plaintiff to prove that "but for" her protected activity she
would not have been retaliated against. [4] This allocation of
burdens of persuasion is markedly different than those routinely
applied by the Secretary in environmental whistleblower cases.
The environmental whistleblower provisions prohibit
an employer from retaliating against an employee "by reason of"
or
[PAGE 7]
"because of" the fact that the employee has engaged in activity
protected under the various statutes. [5] Decisions under these
provisions, as well as under the National Labor Relations Act [6]
and Title VII of the Civil Rights Act of 1964, [7] demonstrate
that in order to prevail a complainant need prove (by a
preponderance of the evidence) only that retaliatory motive
played a part in the employer's decision to take adverse
action against the employee. The complainant does not need to
prove that "but for" the retaliatory motive he or she would not
have suffered the adverse action.
There are two analytical constructs which are employed in
environmental whistleblower cases as well as under Title VII and
the NLRA. There is the so-called "pretext" case, in which the
complainant establishes a prima facie case that the
employer retaliated against him or her by showing that the
complainant engaged in protected activity, the employer knew it
and thereafter took adverse action against the employee. The
complainant must also present evidence sufficient to raise an
inference that the protected activity was the likely reason for
the adverse action. Dean Darty v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 7-8. See also McCuistion v. TVA, Case No. 89-ERA-
6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6; Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (6th
Cir. 1983). The complainant's prima facie showing places
a burden upon the employer to produce evidence that it took
action against the employee for other, legitimate reasons. The
complainant may prevail if he or she persuades the factfinder
that the employer's stated reasons were a pretext, and that the
"true" reason for the adverse action was illegal
retaliation. Darty at 5-9 (citing Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981)); St.
Mary's Honor Center v. Hicks, 113 S.Ct 2742 (1993). [8] In
the pretext case the factfinder ultimately concludes either that
the complainant has proven that the employer acted with
discriminatory motive or that the complainant did not prove that
fact. There are situations, however, in which there is no
one "true" reason for the employer's actions, in the sense
that there was one motivation, either legitimate or illegitimate.
In such "dual motive" cases, the analysis proceeds down a
slightly different path. First, the complainant must persuade
the trier of fact (by a preponderance of the evidence) that
retaliation was a motivating factor in the employer's adverse
action against the employee. N.L.R.B. v. Transportation
Management Corp., 462 U.S. at 401; Goldstein v.
Ebasco, Case No. 86-ERA-36, Sec. Dec. and Ord., Apr. 17,
1992, slip op. at 12 n.3.
The complainant's prima facie case is
basically the same as
[PAGE 8]
with a pretext analysis: the employee engaged in protected
activity, the employer knew it and thereafter took adverse
action, and there is evidence which raises an inference that the
employer had an illegitimate motive. The employer then puts
forth evidence to show that retaliation was not its motive.
However, in the dual motive case, the factfinder concludes that
the complainant has proven that the employer acted at least in
part for retaliatory reasons. The employer then must prove
by a preponderance of the evidence that, although improper motive
played a part in its action, it would have taken the same action
regarding the complainant even if no improper motive existed.
N.L.R.B. v. Transportation Management Corp., 462 U.S. at
401-403. The employer's burden in such a "dual motive" case is
handled much like an "affirmative defense; the plaintiff must
persuade the factfinder on one point, and then the employer, if
it wishes to prevail, must persuade it on another." Price
Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989). See
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec.
Dec. and Ord., Feb. 15, 1995, slip op. at 9-10.
Unlike the Fourth Circuit's "but-for" test under the First
Amendment, [9] under the environmental whistleblower provisions
it is "enough that the protected expression played a role
or was a motivating factor in the retaliation." Ewald II,
slip op. at 7. Thus the environmental whistleblower complainant
never has a "but-for" burden, however the employer
in a dual motive case bears a "but-for" burden. If the
complainant has proven by a preponderance of the evidence that
illegitimate motives played a part in the employer's decision to
take adverse action, and the employer does not persuade the
factfinder that it would have taken the same action, based upon
legitimate motives, even if the illegitimate motives had not
existed, the employer loses. The Transportation Management case articulates the
critical distinction between the two types of burdens at issue
here. [10] In Transportation Management, the NLRB,
consistent with its prior decision in Wright Line (251
N.L.R.B. 1083 (1980), enforced, NLRB v. Wright Line,
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982)), ruled that once a discharged employee had
established (by a preponderance of the evidence) that anti-union
animus was a substantial or motivating factor in the employer's
decision to fire the employee, the employer then had the burden
of persuading the Board (by a preponderance of the evidence) that
the discharge would have taken place even if the employee had not
engaged in protected activity. [11]
The Court ofAppeals rejected this
allocation of burdens of persuasion, and instead held that the
General Counsel of the NLRB had the burden of "showing not only
that a forbidden motivation contributed to the discharge but also
that the discharge would
[PAGE 9]
not have taken place independently of the protected conduct of
the employee." [12] NLRB v. Transportation Management
Corp., 462 U.S. at 401-402.
The Supreme Court reversed. The Court concluded:
The Board's allocation of the burden of proof is
clearly reasonable in this context . . . . The employer
is a wrongdoer; he has acted out of a motive that is
declared illegitimate by the statute. It is fair that
he bear the risk that the influence of legal and
illegal motives cannot be separated, because he
knowingly created the risk and because the risk was
created not by innocent activity but by his own
wrongdoing.
N.L.R.B. v. Transportation Management Corp., 462 U.S. at
403.
The analysis endorsed by the Supreme Court in
Transportation Management has been adopted by the
Secretary in environmental whistleblower cases. SeeWilly v. The Coastal Operation and Coastal
States Management Corp., 85-CAA-01, Sec. Dec. and Ord., June
1, 1994, slip op. at 17 n.9; Goldstein, slip op. at 12
n.3. The ALJ appears to recognize the difference between the
Huang burdens and the environmental whistleblower burdens:
I have taken into consideration the fact that the
Fourth Circuit in Huang v. Board of Governors
of University of North Carolina, 902 F.2d 1134 (4th
Cir. 1990), places a burden upon the employee to show
that but for the protected expression, the employer
would not have taken the alleged retaliatory action.
Under the Mt. Healthy framework, the burden
rests with the employer to demonstrate that it would
have taken the same action even if the employee had not
engaged in the protected activity. The District Court
in this matter, however, found not only that Ewald
failed to carry her burden of proof, it also considered
the Employer's reasons supporting the action which it
took. Thus, the Court affirmatively found that the
protected activity was not the cause for the discharge.
Indeed, the Court concluded that there was no material
dispute in this regard. In these respects the Court's
decision, while citing Huang, nevertheless
weighed Mt. Healthy-type justifications
proffered by the Employer.
R.O. at 4. However, the difference between the Fourth Circuit's
burden allocation and that applicable to environmental
whistleblower cases cannot be so easily dismissed. As Wright and
Miller point out:
The rule that a shift in the burden of persuasion
[PAGE 10]
defeats preclusion should apply even if the first action went
beyond a negative finding that the burden was not carried . . . .
Any such determination . . . would not be necessary to decision
of the first action and may be denied preclusive effect on that
score. Denial of preclusion, moreover, rests on grounds deeper
than the general necessity principle. However difficult it may
be to justify in terms of abstract burden theory, the fact
remains that direct responsibility for immediate consequences is
apt to control resolution of uncertainty. A tribunal that is
prepared to state that the plaintiff was negligent when nothing
turns on the statement might easily make a different statement if
the defendant's claim were before it for actual disposition.
Wright and Miller § 4422 at 213-214. Thus, the district
court's conclusion that there was "no material dispute that
[Ewald's] speech was not the "but for" cause of the
discharge . . ." (Ewald I at 18) does not have preclusive
effect in this case.
The ALJ also considered it relevant that the
EwaldI court discussed Virginia's asserted
motives in reaching its conclusion that Ewald had not been
retaliated against. R. O. at 4. However, the employer's
asserted motives are relevant under either a Huang-type
analysis or an environmental whistleblower provision-type
analysis. Under Huang, once the employer comes forward
with evidence that it possessed any legitimate reasons for
taking adverse action against an employee, the employee loses her
case unless she can prove, by a preponderance of the evidence,
that those reasons were not the "true" motive, and that the
illegitimate reason was. Under the burden allocation used in
environmental whistleblower cases, once the complainant has
proven that an illegitimate motive played a part in the
employer's actions, it is incumbent upon the employer to persuade
the trier of fact that it would have taken the same action based
upon other, legitimate reasons alone. Thus, the fact that the
district court in EwaldI "considered the
Employer's reasons supporting the action which it took" (R. O. at
4) does not show what burdens of persuasion it applied.
There can be no doubt that the burden of persuasion applied
by the district court in EwaldI and the court of
appeals in Ewald II is more stringent than that which is
routinely applied in environmental whistleblower decisions.
Because of that critical difference between the cases, I decline
to apply the doctrine of issue preclusion to this case.
CONCLUSION
For the foregoing reasons I decline to adopt the recommended
decision of the ALJ and remand this case for further proceedings
consistent with this decision.
SO ORDERED.
[PAGE 11]
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The ALJ included very few facts in his recommended
decision. I have generally relied on undisputed facts which are
recited in the district court's decision in Ewald I and
the decision of the Court of Appeals for the Fourth Circuit
(Ewald II).
[2] As the Supreme Court stated in Montana v. United
States, 440 U.S. 147, 153-154 (1979):
To preclude parties from contesting matters that they
have had a full and fair opportunity to litigate
protects their adversaries from the expense and
vexation attending multiple lawsuits, conserves
judicial resources, and fosters reliance on judicial
action by minimizing the possibility of inconsistent
decisions.
[3] The Restatement provides that there should be no issue
preclusion when:
[t]he party against whom preclusion is sought had a
significantly heavier burden of persuasion with respect
to the issue in the initial action than in the
subsequent action; the burden has shifted to his
adversary, or the adversary has a significantly heavier
burden than he had in the first action . . . .
Id.
[4] The Court of Appeals relied upon the Supreme Court's
decision in Givhan v. Western Line Consol. School Dist.,
439 U.S. 410 (1979), in Huang and in EwaldII. Thus, in Huang the court, citing
Givhan, stated "[t]he causation requirement is rigorous;
it is not enough that the protected expression played a role or
was a motivating factor in the retaliation; claimant must show
that "but for" the protected expression the employer would not
have taken the alleged retaliatory action." Huang, 902
F.2d at 1140. See also EwaldII, slip op at 7.
However, Givhan explicitly endorsed the Court's earlier
holding in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S.
274, 287 (1977), that in a First Amendment employment case once
the employee has shown that his constitutionally protected
conduct played a "substantial" role in the employer's decision,
the employer is entitled to show "by a preponderance of the
evidence that it would have reached the same decision as to [the
employee] even in the absence of the protected conduct."
See Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410, 416 (1979).
[5] The CWA (33 U.S.C. § 1367 (1988)), RCRA (42 U.S.C.
§ 6971 (1988)), and CERCLA (42 U.S.C. § 9610 (1988)),
use "by reason of", while the SDWA (42 U.S.C. § 300j-9(i)
(1988)), uses "because of." The Department of Labor implementing
regulations refer to "because." 29 C.F.R. § 24.2 (a)
(1994). There is no historical or analytical reason to conclude
that these terms were meant to have different meanings.
[6] 29 U.S.C. § 151 et seq. (1988) (NLRA).
[7] 42 U.S.C. § 2000e et seq. (1988) (Title VII).
[8] In N.L.R.B v. Transportation Management Corp., 460
U.S. 393, 399 n.5 (1983), the Supreme Court described this
situation as one "in which the issue is whether either illegal or
legal motives, but not both, were the 'true' motives behind the
decision."
[9] As the Supreme Court has pointed out in the Title VII
context:
But-for causation is a hypothetical construct. In
determining whether a particular factor was a but-for
cause of a given event, we begin by assuming that
factor was present at the time of the event, and then
ask whether, even if that factor had been absent, the
event nevertheless would have transpired in the same
way.
Price Waterhouse v. Hopkins, 490 U.S. at 240.
[10] NLRA case law is particularly relevant to interpretations
of the environmental whistleblower provisions, as the provisions
were explicitly modeled on the NLRA. See S. Rep. No. 414,
92d Cong., 2d Sess. 80-81 (1972), reprinted in 1972
U.S.C.C.A.N. 3668, 3748-49.
[11] As the Supreme Court stated, "[i]t thus became clear, if
it was not clear before, that proof that the discharge would have
occurred in any event and for valid reasons amounted to an
affirmative defense on which the employer carried the burden of
proof by a preponderance of the evidence." N.L.R.B. v.
Transportation Management Corp., 462 U.S. at 400.
[12] Thus the Court of Appeals placed the "but-for" burden upon
the discharged employee.
