USDOL/OALJ: Federal Court Whistleblower Decisions 2017
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Federal Court Whistleblower Decisions - 2017

Energy Reorganization Act

  • Smith v. Dept. of Labor, No. 15-1713 (4th Cir. Jan. 9, 2017) (unpublished) (case below ARB No. 14-027, ALJ No. 2009-ERA-7) (2017 U.S. App. LEXIS 351; 2017 WL 75763)
    Opinion
    PDF
    Summary:

    “[W]e hold that in ERA whistleblower cases in which the protected disclosures reveal the whistleblower’s own misconduct, the employer is not required to prove that it independently would have discovered the whistleblower’s misconduct. Instead, the employer must demonstrate by clear and convincing evidence that it would have imposed the same type of discipline for the same infraction by a non-whistleblowing employee, regardless of the manner in which the employer discovered the misconduct.” Slip op. at 17-18.