Whistleblower Digest
PRIMA FACIE CASE
[Last Updated March 10, 2009]
FEDERAL COURT DECISIONS
PRIMA FACIE CASE UNDER SOX IS NOT IDENTICAL TO TITLE VII AND MCDONNELL DOUGLAS
In Day v. Staples, Inc. , No. 08-1689 (1st Cir. Feb. 9, 2009) (case below 2006-SOX-34), the First Circuit noted that:
Th[e] prima facie case under SOX is not identical to that under Title VII and McDonnell Douglas , which requires the plaintiff to show (1) he is a member of a protected class; (2) he was qualified for the job; (3) the employer took an adverse employment action; and (4) the position remained open or was filled by a person with similar qualifications. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993). Indeed, the SOX burden may be more difficult to meet because an inference does not arise automatically if the four criteria are met, but only when the circumstances are sufficient to raise an inference and because the employee must show that he engaged in the protected activity.
Slip op. at 22 n.6.
ADMINISTRATIVE REVIEW BOARD DECISIONS
BURDEN OF PROOF; MERELY PRESENTING A PRIMA FACIE CASE DOES NOT ENTITLE A COMPLAINANT TO PREVAIL
erely presenting a prima facie case does not entitle a complainant to prevail, but merely forces a respondent to articulate its reason or reasons for an unfavorable personnel action. Once a respondent has done so, and a full hearing has been held, the prima facie case analysis is no longer relevant. Moreover, "whether or not the respondent has articulated a reason, the complainant in order to obtain relief must prove each element of his case by a preponderance of evidence. Only if the complainant so proves must the ALJ apply a mixed motive analysis and determine whether the complainant's employment would have been terminated anyway." Henrich v. Ecolab, Inc. , ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB June 29, 2006), slip op. at 16 (ALJ did not err in declining to engage in a mixed motive analysis where the Complainant failed to prove that protected activity was a contributing factor in his termination).
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