Burdens of Proof
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What is my burden of proof with respect to the merits of 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.
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.