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Burdens of Proof

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What is my burden of proof with respect to my request for corrective action?

In order to prove the merits of your request for corrective action, you must prove by preponderant evidence that you made a protected disclosure under 28 C.F.R. § 27.1(a) that was a contributing factor in the FBI’s decision to take or fail to take, or threaten to take or fail to take, a personnel action covered by 28 C.F.R. § 27.2(b) against you.

What is preponderant evidence?

Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than not true.

Am I automatically entitled to relief if I prove that I made a protected disclosure that was a contributing factor in the FBI’s personnel action(s) against me?

No. Even if you prove by preponderant evidence that you made a protected disclosure that was a contributing factor in the FBI’s decision to take a personnel action against you, OARM cannot order corrective action if the FBI establishes by clear and convincing evidence that it would have taken the same personnel action against you in the absence of your disclosure.

What is the FBI’s burden of proof under the clear and convincing standard?

Clear and convincing evidence is the measure or degree of proof that produces in the mind of the Director of OARM a firm belief that the FBI’s claim that it would have taken the same personnel action against you in the absence of your protected disclosure is true. It is a higher standard of proof than the preponderant evidence standard.

What factors will OARM consider in assessing the FBI’s burden of proof?

In determining whether the FBI has shown by clear and convincing evidence that it would have taken the same personnel action against you in the absence of your protected disclosure, OARM will consider the strength of the FBI’s evidence in support of its actions; the existence and strength of any motive to retaliate on the part of the FBI officials involved in the action; plus any evidence that the FBI has taken similar actions against employees who are not whistleblowers, but who are otherwise similarly situated to you.

What is a similarly situated comparative employee?

For another employee to be deemed “similarly situated” to you, all relevant aspects of your employment situation must be nearly identical to those of the comparative employee. Among other things, a comparative employee must have reported to the same supervisor as you, been subjected to the same standards governing discipline (or other action), and engaged in conduct similar to yours without differentiating or mitigating circumstances.

Updated: August 2011