Almost six years of wrangling ensued, including two remands to the ALJ from the Administrative Law Board. Ultimately, the board in 2011 upheld a decision by the ALJ dismissing Bechtel's complaint.
Bechtel appealed to the Second Circuit, where Judges Jose Cabranes (See Profile), Reena Raggi (See Profile) and Peter Hall (See Profile) heard oral arguments on Dec. 7, 2012, in Bechtel v. Administrative Review Board, 11-4918-ag.
Writing for the panel, Cabranes said Bechtel had to prove by a preponderance of the evidence that he was engaged in protected activity; that CTI knew he was engaged in protected activity; that he suffered an unfavorable action: and that the "protected activity was a contributing factor in the unfavorable action."
"Even if the employee proves these elements by a preponderance of the evidence, the employer may rebut this prima facie case with clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity," he said.
On the second remand, he said, the ALJ initially applied the correct standard, but made the mistake of elaborating and stating that until an employee meets his burden of proof, the employer "need only articulate a legitimate business reason for its action."
The ALJ, Cabranes said, "seems to have thought that, in addition to the framework specified by the statute and regulations, there existed a second burden-shifting system that applied when the complainant failed to prove a prima facie case by a preponderance of the evidence."
Cabranes said the ALJ's "alternative burden-shifting scheme has no basis in any relevant law or regulation and is simply incorrect."
The board, however, did not make the same mistake, Cabranes said, as it found that "Bechtel had failed to prove by a preponderance of the evidence that his protected activity was a contributing factor in the adverse employment action."
Kirstin Marie Jahn of Jahn & Associates in Boulder, Colo., represented Bechtel.
Trial Attorney Dean Romhilt of the U.S. Department of Labor argued for the Administrative Review Board.