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In whistleblower law, standards of evidence make a difference

When a person is charged with a crime, the state must prove its case beyond a reasonable doubt. That is, the evidence has to be so clear and convincing that a jury or a judge can feel confident the defendant is guilty. The standard is not quite so high in civil cases. Then, all that's required is or a plaintiff to offer a preponderance of evidence. Having 51 percent of the evidence on your side can win the case.

Such differences in the standards of evidence also have implications in other areas. Attorneys experienced in representing federal workers in job disputes are well aware of this, even if the reality of it sometimes needs reinforcing by the courts. One recent case seems to provide a case in point.

The matter features an individual whistleblower on one side and the Department of Justice on the other. The worker had been a supervisor of a federal prison factory where inmates make ballistic helmets for the military. According to the record of the case, the worker claimed to have become a target of unfair retaliatory job action after raising a flag in 2009 about alleged mismanagement and sabotage on the production line.

Over the next four and a-half years, despite a long history of outstanding performance reviews, the employer relegated the man to menial jobs. For one eight-month stretch, he simply sat on a couch in a lobby and had no work to do at all.

The administrative judge who first heard the claim agreed that the worker had shown by a preponderance of evidence that he deserved protection under the Whistleblower Protection Act. But the official also accepted the government's argument, based almost solely on testimony from the worker's boss, that his reassignments would have occurred anyway.

In reversing the judge's determination and a denied appeal by the Merit Systems Protection Board, the appeals court ruled that the DOJ had failed to meet the required standard of providing "clear and convincing" evidence that the plaintiff would have suffered adverse actions in any event. It just hadn't made its case.

What this shows is the importance of understanding the varying burdens of proof.

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