Subpart B
The complainant must show that protected behavior was a contributing factor in the unfavorable personnel action alleged. Under 1979.109(a), an administrative law judge may only determine a violation occurred if the complainant demonstrates that protected conduct contributed to the adverse action; the judge cannot find a violation on other grounds.
Yes — the named person can avoid relief by proving by clear and convincing evidence they would have taken the same unfavorable personnel action even without protected conduct. This defense is explicitly recognized in 1979.109(a).
No — the administrative law judge may not review the Assistant Secretary’s decision to dismiss a complaint or to proceed with an investigation under 1979.104(b). Per 1979.109(a), the judge cannot remand a case for further investigation based on a claimed error in that administrative decision and must hear the case on the merits if there is otherwise jurisdiction.
The judge can order affirmative relief to abate the violation, including reinstatement, back pay, restoration of terms and privileges of employment, and compensatory damages. 1979.109(b) lists these remedies and allows the judge to direct appropriate actions to make the complainant whole.
Yes — at the complainant’s request the judge shall assess all costs and expenses reasonably incurred, including attorney’s and expert witness fees, against the named person. See 1979.109(b) for this mandatory award when requested and found reasonable.
Yes — if the administrative law judge determines the complaint was frivolous or brought in bad faith and the named person requests fees, the judge may award a reasonable attorney’s fee up to $1,000. This specific limit and condition are in 1979.109(b).
A judge’s decision requiring reinstatement becomes effective immediately upon the named person’s receipt of the decision and may not be stayed. 1979.109(c) makes reinstatement orders effective right away once the named person receives the decision.
All other portions of the judge’s order become effective ten business days after the date of the decision unless a timely petition for review is filed with the Administrative Review Board. See 1979.109(c).
No — reinstatement orders or orders lifting an Assistant Secretary’s reinstatement decision are not stayable and are effective immediately upon receipt by the named person. This rule is set out in 1979.109(c).
No — the administrative law judge may not remand for completion of an investigation or require additional findings because a complaint was dismissed; the judge must hear the case on the merits if there is jurisdiction. This limitation is provided in 1979.109(a).
Yes — compensatory damages may be awarded as part of appropriate relief, and 1979.109(b) specifically lists compensatory damages among allowable remedies; the section itself does not set a numeric cap on compensatory damages.
The administrative law judge decides whether the costs and expenses (including attorney and expert fees) are reasonable when assessing them against the named person at the complainant’s request. The authority and procedure for awarding these fees are outlined in 1979.109(b).
The named person must prove by clear and convincing evidence that they would have taken the same unfavorable personnel action regardless of protected behavior. This heightened evidentiary standard is required by 1979.109(a).
The judge will assess and award only the costs and expenses (including attorney’s and expert witness fees) that the judge determines are reasonably incurred. 1979.109(b) requires the judge to make reasonableness determinations and limits awards to reasonable amounts.
The decision will be served on all parties to the proceeding, and parties should rely on service for calculating effective dates and appeal deadlines. The service and effectiveness rules are stated in 1979.109(c).
The decision must contain appropriate findings, conclusions, and an order addressing remedies under paragraph (b) as appropriate. 1979.109(a) requires findings, conclusions, and remedial orders when the judge issues a decision.