opening brief on appeal in kanj v. viejas band of kumeyaay indians
DESCRIPTION
Before the United States Department of Labor, Administrative Review Board, Third Appeal in a Clean Water whistleblower action.TRANSCRIPT
UNITED STATES DEPARTMENT OF LABOR
ADMINISTRATIVE REVIEW BOARD
In the Matter of:
JAMAL KANJ,
Complainant
v.
VIEJAS BAND OF KUMEYAAY
INDIANS,
Respondent.
ARB CASE NO. 12-002
ALJ CASE NO. 2006-WPC-001
COMPLAINANT’S OPENING BRIEF
ALJ Hon. Russell D. Pulver
Scott A. McMillan, SBN 212506
The McMillan Law Firm, APC
4670 Nebo Drive, Suite 200
La Mesa, California 91941-5230
(619) 464-1500 x 14
Fax: (206) 600-5095
Attorneys for Complainant,
Jamal Kanj
Table of Contents
I. STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. SUMMARY OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Material Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Summary of Trial Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i. Jamal Kanj. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii. Steven Jones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii. Don McDermott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iv. Bobby Barrett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
v. Wendy Roach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vi. Virginia Christman via Deposition Testimony. . . . . . . . . . . . . . . . . 17
vii. Tom Hyde via Deposition Testimony.. . . . . . . . . . . . . . . . . . . . . . . 17
viii. Anthony Pico via Deposition Testimony. . . . . . . . . . . . . . . . . . . . . 18
ix. Brian Frasier via Deposition Testimony.. . . . . . . . . . . . . . . . . . . . . 19
x. Penelope Culbreth-Graft via Deposition Testimony. . . . . . . . . . . . 21
xi. Phillip Kaushall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
xii Edward Rose.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
IV. JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
V. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
VI. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Mr. Kanj Engaged in Protected Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. The Tribal Council and Mrs. Roach had Knowledge of the Reports Mr. Kanj
Continually Made About the Pollution of Viejas Creek. . . . . . . . . . . . . . . 27
C. Adverse Employment Conduct The ALJ Did Not Address.. . . . . . . . . . . . 29
i. Discrimination that Created a Hostile Work Environment.. . . . . . . 30
ii. The Tribe’s Refusal of Mr. Kanj’s Vacation Request. . . . . . . . . . . 31
iii. Denial of Performance Reviews and Salary Increases. . . . . . . . . . . 32
D. Mr. Kanj has Shown by a Preponderance of the Evidence that His
Engagement in Protected Activity was a Contributing Factor in His
Termination .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
i. Mr. Kanj’s Reports Received as Unwelcome Requests for Changing
Tribal Traditions and Culture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ii. Wendy Roach’s Submission of Reports in Mr. Kanj’s Name Shows
The Animosity by the Tribal Council to Fencing Proposal. . . . . . . 37
E. The Reasons the Tribal Council Gave for Mr. Kanj’s Termination are
Pretextual. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
i. Wendy Roach’s Testimony is Not Reliable. . . . . . . . . . . . . . . . . . . 38
ii. The Tribe Cannot Support The Claim That There Were Problems
With Mr. Kanj’s Job Performance. . . . . . . . . . . . . . . . . . . . . . . . . . 44
iii. Mr. Kanj was Committed to the Tribe and his Job . . . . . . . . . . . . . 49
F. The ALJ Misapplied the Law Concerning the Standard of Proof for
Complainant to Shift the Burden to the Tribe to Disprove the Negative
Inference of Unlawful Motivation for the Adverse Employment Action. . 52
VII. CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
APPENDIX / TIME-LINE
PROOF OF SERVICE
Table of Authorities
Federal Case AuthorityBowen v Georgetown Univ. Hosp., 488 U.S. 204 (1988). . . . . . . . . . . . . . . . . . . . . . . . . 24
Chapman v. Al Transp., 229 F. 3d 1012 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 36
Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12 (1998). . . . . . . . . . . . . . . . . . . . . . 52
Espinal v. Goord, 558 F.3d 119 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Getman v. Sw. Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008 (2005). . . . . . . . . 25
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pierce v. U.S. Enrichment Corp., ARB No. 06-055-058, -119, ALJ No. 2004-ERA-001
(2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29, 34
Sasse v. United States DOL, 409 F. 3d 773 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Schafermeyer v. Blue Grass Army Depot, ARB Case No. 07-082 (2008).. . . . . . . . . . . . 24
Shirani v. Comed/Exelon Corp., ARB No. 03-100, ALJ No. 2002-ERA-28 (2005).. . . . 27
Sievers v. Alaska Airlines, Inc., ARB No. O5-109, ALJ No. 2004-AIR-028 (2008). . . . 34
Speegle v. Stone & Webster Constr., Inc., ARB No. 06-041, ALJ No. 2005-ERA-006,
(2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 25, 26, 34, 38
St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ No. 96-ERA-34
(2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54
Federal Statutory Authority29 Code of Fed. Reg. § 24.110(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
29 Code of Fed. Reg. § 24.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
33 U.S.C. § 1367(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
42 U.S.C. § 6971(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
I. STATEMENT OF THE CASE
The resolution of any conflict begins first by forming a clear and concise picture of
the dispute. This case arises from the actions of Jamal Kanj who, while working for the
Viejas Band of Kumeyaay Indians (the “Tribe”), exposed fecal coliform contamination
the Tribe inoculated into a creek running through its land. The water of Viejas Creek
flows into Loveland Resevoir, which the City of San Diego relies upon as a source of
drinking water. But - less remote to the Tribe’s concerns than the downstream users of
the water – children played in the Viejas Creek while the Tribal leadership was on notice
of the fecal contamination of the water.
Beginning in March of 2003, Mr. Kanj notified the Tribe that the pollution was in
violation of Federal water standards. At trial, the Tribe did not dispute that Mr. Kanj
communicated protected information under the whistleblower provisions of the Clean
Water Act, or that he had both reasonable subjective and objective bases for the
communications. And, the ALJ accepted the Tribe’s concession.
Although the Tribe disputed it, the ALJ also found that Complainant Kanj had
acted above and beyond his duties in making the complaint, as it was not his job to make
such otherwise protected communications concerning the fecal coliform contamination.
Mr. Kanj did not stop with notification, he pestered the tribal leadership to fence
off the cattle from Viejas Creek. And, when that leadership changed, Mr. Kanj made sure
to reiterate these significant health concerns. Which, given his background, was not
unexpected. The effects of contaminated water were not academic to Mr. Kanj. He grew
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 1
up in a Palestinian refugee camp in Lebanon, where survival relied on the availability of
clean water. As a child, Mr. Kanj witnessed the decline and ultimate death of a neighbor,
a boy who died from ingesting contaminated water. In the camp, Mr. Kanj also witnessed
the annual ravages of Cholera. Given the choice between stifling his contamination
complaints and maintaining his job, or suffering the fate of a whistleblower – and in light
of what was at stake - Mr. Kanj chose the latter.
In return, the Tribe subjected Mr. Kanj to various forms of active mistreatment and
more passive forms of adverse action, up to and including his ultimate termination.
Significantly, the Tribe did not terminate Mr. Kanj for contractual “cause,” and even
tendered severance payments. But, the Tribe gave another story before the ALJ. At trial,
the Tribe claimed that Mr. Kanj was terminated for reasons other than his continued
demands that the Tribe get the cattle out of the creek. Yet, the Tribe failed to produce
one document reflecting any basis for legitimate criticism of Mr. Kanj’s job performance.
Relying on oral testimony at trial, the Tribe offered pretextual explanations for Mr.
Kanj’s termination and mistreatment. The true source of its adverse reaction, however,
sprang from influential members of the Tribe who resented and retaliated against attempts
to change the historical use of Tribal land. Notwithstanding the danger to its neighbors,
the Tribe’s rebellious urge to exercise autonomy over its own land, and its own animals,
took precedence over the environmental statutes passed by Congress.
As set forth within, the evidence is one-sided that Mr. Kanj was the victim of
intentional discrimination resulting from his inflexible attitude towards water safety.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 2
Moreover, in light of the temporal events and resulting actions, and the Tribe’s own lack
of documentary evidence substantiating its decision, the Tribe’s proffered explanation is
unworthy of any credence. Even if such were the standard, which it is not, substantial
evidence does not support the findings necessary for the Secretary to adopt the ALJ’s
recommended order of dismissal of Mr. Kanj’s complaint.
Furthermore, although the ALJ began by identifying the proper standard for Mr.
Kanj’s claim in its order, its conclusion was based on an inverted application of the same
standard. In determining whether Mr. Kanj’s whistleblowing was a “contributing factor”
to the adverse employment action by the Tribe, the Court identified the standard (i.e., that
a contributing factor is “any factor which, alone or in connection with other factors, tends
to affect in any way the outcome of the decision.”) (Speegle v. Stone & Webster Constr.,
Inc., ARB No. 06-041, ALJ No. 2005-ERA-006, slip op. at 9. (ARB Sept. 24, 2009)
However, the Court erroneously failed to focus its attention on whether Mr. Kanj’s
protected activity contributed to his termination. Instead, the ALJ focused on whether
anything else could have contributed to Mr. Kanj’s termination. (Dec. and Order 48)
The presence of an alternate valid motivation for terminating an individual does
not disprove evidence that the protected activity was a contributing factor. This
misapplication of the legal standard is grounds for the decision to be overturned through
this appeal.
II. PROCEDURAL HISTORY
On August 5, 2005, within two weeks of his July 24, 2005 termination, Mr. Kanj
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 3
filed his complaint. On November 14, 2005, the Viejas Tribe filed a motion for summary
judgment on the grounds that the tribal sovereign immunity precluded Mr. Kanj from
applying for whistle blower protection under the Clean Water Act (“CWA”). Mr. Kanj
opposed the motion on the grounds that tribal sovereign immunity is explicitly abrogated
by the CWA. On December 12, 2005, the ALJ agreed that the CWA waives immunity.
The Tribe then sought interlocutory appeal of the denial of its motion for summary
judgment. On March 9, 2006, the ALJ certified the sovereign immunity issue to the
ARB, and stayed the proceeding pending the ARB decision. On April 27, 2007, the ARB
affirmed the denial of summary judgment. (Kanj v. Viejas, ARB No. 06-074, ALJ 06-
WPC-01 (ARB April 27, 2007)) The case was then remanded to the ALJ for a trial to take
place on January 22, 2008.
On January 25, 2008, the Tribe sought to amend its Answer to assert an additional
affirmative defense that Complainant’s claims were time-barred. On March 17, 2008, the
ALJ granted the Tribe’s motion, and the trial was continued to May 27, 2008, so both
parties could conduct further discovery. The trial was subsequently continued to August
18, 2008.
In January 2009, the ALJ issued a Decision and Order Dismissing the Complaint,
based on the Tribe’s statute of limitations defense. On February 11, 2009, Mr. Kanj filed
a Motion for Reconsideration, which was denied by the ALJ. Mr. Kanj filed a Petition
for Review with the ARB, which was granted on December 1, 2010. The case was thus
remanded to the ALJ for a decision on the merits. Both parties filed additional briefs
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 4
regarding the relevant issues. On September 9, 2011, the ALJ issued a second Decision
and Order Dismissing the Complaint. (Decision and Order (2011), “Dec. and Order.”)
On September 22, 2011, Mr. Kanj filed a Petition for Review of the findings of the
Order of the ALJ, which was granted by the ARB on October 11, 2011. On October 28,
2011, the ARB granted Complainant’s motion for an extension to file this initial brief.
On December 22, 2011, the ARB granted a further extension to January 10, 2011.
III. SUMMARY OF THE CASE
A. Material Facts
Jamal Kanj is a Professional Engineer licensed in the State of California. In
August 2000, he was hired by the Tribe to serve as the Public Works Director, and
simultaneously as the Deputy Tribal Manager, from April 2001 through October 2004.
(Compl. Ex. 9) As Director of Public Works, Mr. Kanj’s duties included overseeing the
development, maintenance and repair of the natural landscape and all waterways, waste
water treatment systems, storm drains, and roads. (1RT235:19-23)
In March 2003, Mr. Kanj discovered contamination of fecal coliform in the
Reservation’s Creek. (1RT267:15-270:16; 2RT350:11-355:17) He determined the
contamination originated within the Reservation, and pinpointed the problem to the
Tribe’s free-range cattle that had been defecating in the creek. (Id.) Mr. Kanj was
reasonably concerned about the contamination because Viejas Creek runs into a reservoir
that supplies drinking water to San Diego County. (1RT245:6-16) Mr. Kanj was also
alarmed because he saw children playing in the contaminated creek. (3RT618:13-25)
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 5
Soon after his initial report, Mr. Kanj began to suffer abuse from the Tribal
Council and Tribal Elder Tom Hyde, whose own cattle were causing the contamination.
(1RT267:15-270:16; 2RT350:11-355:17) Following Mr. Kanj’s initial report, the Tribe
never provided another performance evaluation of him, and he received only one salary
increase. (2RT360:6-22) Mr. Kanj made reports of fecal contamination again in 2005.
On June 23, 2005, the Tribe provided Mr. Kanj with notice of termination, effective 30
days later (July 24, 2005.) (Compl. Ex. 35, 36, 91)1
Although the Tribe told Mr. Kanj to stay away from the Tribe’s facilities, Mrs.
Roach submitted a report to the Tribal Council which called attention to the high level of
fecal coliform contamination in the creek. (Compl. Ex. 31) Although the report was
begun by Mr. Kanj, it was Mrs. Roach who modified it, completed it, and put in
information relating to the water testing. (Depo. of Roach 123:1-24) Mrs. Roach
submitted the report in Mr. Kanj’s name and left her name entirely off the report. The
decision to have Mr. Kanj be assigned the blame for the unwelcome news demonstrates
Mrs. Roach’s subjective fear of the Tribe’s animosity toward such reports.
Mrs. Roach failed to document any complaint which supported her decision to
terminate Mr. Kanj. The Tribe provided no evidentiary support for the investigation
which memorialized any criticisms made against Mr. Kanj. Mrs. Roach justified this
absence of documentary evidence by asserting that she was not a “note taker,” despite
In order to facilitate a clear understanding of the events, a time-line has been attached at1
the end of Mr. Kanj’s Opening Brief.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 6
being responsible for managing up to as many as 50 to 70 people in her role as Tribal
Manager. (Depo. of Roach 148:15-23; 4RT929:2-13)
B. Summary of Trial Testimony
i. Jamal Kanj
Mr. Kanj testified that when he was growing up in a Palestinian refuge camp in
Lebanon, his neighbor died from unsanitary water conditions, and that experience
impacted the way Mr. Kanj feels about the importance of clean drinking water.
(1RT162:4-164:4) This was further emphasized when, years later, Mr. Kanj’s son got sick
from washing fruit with water which had not been sanitized. (1RT164:24-165:15) Mr.
Kanj was 18 years old when he came to the United States (1RT219:15-23), and he
decided to study civil engineering because he felt it was an occupation which allowed him
to help the people around him. (1RT220:4-12) He received an Associate of Arts degree in
engineering while studying in Houston, Texas. (1RT229:21-25) From there, he went on
to study engineering at the University of Oklahoma, and he completed his degree in San
Diego at the United States International University. (1RT229:21-230:4) Upon earning
his Bachelor of Science in civil engineering, Mr. Kanj worked for the City of San Diego
for about 15 years in the water collection division, and he implemented a plan to keep
polluted runoff water from entering the ocean. (1RT220:25-222:25) Mr. Kanj became a
professional engineer licensed with the State of California in 1993.
While working for the City of San Diego, Mr. Kanj met Ms. Culbreth-Graft, who
told him about the job of Director of Public works with Viejas. (1RT223:11-224:4) Ms.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 7
Culbreth-Graft noted that the Director of Public Works would be in charge of many
things, including construction pertaining to water, sewer, roads and buildings.
(1RT235:17-25) Mr. Kanj was not told that there were any wastewater problems that he
would be handling or any involvement with the Viejas Creek. (1RT236:12-24) The water
from Viejas Creek eventually discharges into Loveland Reservoir, one of the major
reservoirs used to provide drinking water for San Diego County. (1RT245:6-16)
In August of 2000, Mr. Kanj was hired by the Tribe. (Compl. Ex. 9) Mr. Kanj
negotiated his initial contract with Viejas as the Director of Public works with Ms.
Culbreth-Graft. (1RT254:10-255:23) The parties agreed that Mr. Kanj would receive an
annual salary of $98,000, a 20% bonus, and that he was to receive annual performance
evaluations and future salary increases based on those evaluations. (1RT261:19-262:18)
But Mr. Kanj only received two performance evaluations, one in 2001 and another in
2002, and in both he was deemed “Outstanding.” (1RT262:3-5; Compl. Ex. 10 and 14)
Both of these evaluations preceded his reporting that the Viejas Creek was polluted as a
result of activity on Tribal grounds.
Mr. Kanj made his first presentation and report on the contamination in the Viejas
Creek to the Tribal Council in March of 2003. After that report, he received no further
performance evaluations, despite having asked for one because he knew other directors
were receiving performance evaluations and salary increases. (1RT262:11-265:3)
Mr. Kanj proposed fencing off the creek to prevent the cattle from contaminating
the water, an idea to which the Tribal Council was initially receptive. (1RT269:1-16;
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 8
Compl. Ex. 26) However, Council members wanted Mr. Kanj to clear the plan with
Tribal Elder Tom Hyde. (1RT269:12-20) Mr. Kanj attended a meeting at Mr. Hyde’s
house to discuss fencing the creek, and afterward reported to the Tribal Council that Mr.
Hyde behaved disrespectfully toward him. The Tribal Council sided with Mr. Hyde, and
did absolutely nothing to remedy the problem. (2RT339:10-340:10)
Mr. Kanj documented the harassment he was subjected to by the Tribe, including
Elder Tom Hyde. (2RT342:1-6) Mr. Hyde verbally abused Mr. Kanj at almost every
General Council meeting, and because Mr. Hyde had family members on the Tribal
Council, Mr. Kanj felt the Council would not do anything to address the significant
contamination problem. (2RT351:17-356:20) Furthermore, although Mr. Kanj had
always been present at the Council meetings and always had something to report, after he
brought the presence of fecal coliform in the creek to the Tribe’s attention, he was told he
should stop attending the General Council meetings. (1RT275:20-276:7; 2RT356:13-20)
Mrs. Wendy Roach assumed the role of Tribal Government Manager in October
2004. (2RT360:1-5) In January of 2005, a new Tribal Council was elected, and Mr. Kanj
decided to give yet another presentation of the ongoing fecal coliform contamination, and
notified the new Tribal Council that the fecal levels were in violation of water standards.
(2RT378:1-23) Again, on February 22, 2005, Mr. Kanj called attention to the fecal
coliform levels in the creek in a bi-weekly report to the Tribal Council. (Compl. Ex. 29)
In April of 2005, Mr. Kanj requested a 30-day leave from work so he could travel
to Lebanon to visit his parents, both of whom were recovering from surgery. (2RT37:18-
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 9
380:4) At the time of his vacation request, there were certain construction projects
underway, including a gymnasium, a water reclamation project, and senior landscaping
that Mr. Kanj was supervising. Mr. Kanj believed the projects were at stages that did not
require his immediate supervision. When he requested the 30-day leave, the Tribe told
him it would interfere with the progress of and he was not told (when he requested a the
vacation) that it would interfere with necessary work. (3RT691:12-693:10)
Although the Tribe denied Mr. Kanj’s request for a 30-day leave, he was allowed a
10-day vacation. Mr. Kanj’s vacation request was denied, but a 10-day vacation was
permitted . (3RT393:11-13) On May 26, 2005, the Tribe tendered him with a proposed2
severance agreement. (3RT735:4-6) Three days after he began his vacation, Mrs. Roach
blocked his e-mail account.
When he returned from his ten day vacation, Mr. Kanj was told that he was given
notice of his termination. (2RT565:17-568:17) He was distraught over this turn of events
(3RT654:1-19), and took sleeping pills and anti-depressants as a result. (3RT796:14-
797:21) Mr. Kanj began to suffer emotionally in 2004 and 2005, before his termination,
but testified that it was due to the stress from his job at Viejas. (3RT801:1022)
Mr. Kanj testified that, prior to his termination, he had posted his resume on
Monster.com, and was in the habit of sending his resume out and reviewing potential job
Mr. Kanj felt that the Tribe had made his position seem so important that, when2
his request for vacation was denied, he used the idea of “splitting” as a negotiation tactic.
He did not use the word severance and did not expect that the Tribe would serve him with
a severance package after Tribal members claimed his position was so critical.
(3RT731:22-732:20)
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 10
offers. (3RT779:15-780:8) However, the Tribe had no knowledge of these actions prior
to his termination, which makes the information irrelevant to the Tribe’s claim that Mr.
Kanj lacked commitment. Furthermore, the Tribe did not terminate Mr. Kanj for “cause”
according to the contract, which undermines their claim that his job performance was
poor. (Compl. Ex. 35 and 9)
At trial, the Tribe argued various reasons for Mr. Kanj’s termination. The
pretextual reasons related to alleged construction project problems, including change
order delays, and Mr. Kanj’s alleged lack of commitment. But, there were no documents
offered into evidence supporting these claims. Mr. Kanj testified that change orders do
not hold up construction and can be settled at the end of construction. (2RT530:2-11)
Mr. Kanj stated that the bi-weekly construction progress meetings were to address issues
with change orders and Requests for Information (RFI), and that he did not believe his
position on change orders or RFIs caused any delay in the project. (2RT537:2-24)
Tellingly, the Tribe was never informed Mr. Kanj that his actions were delaying the
project, a claim raised by the Tribe at trial. (2RT541:11-13)
ii. Steven Jones
The Tribe employed Steven Jones for about 10 years. (2RT394:6-7) In early 2005,
the Tribe asked Mr. Jones to begin attending owner-contractor meetings for the
gymnasium project, supposedly because the Tribe had concerns about how the project
was being run. (2RT397:1-16) Mr. Jones, Brian Frasier, Mr. Kanj, the project architect,
and various staff members from the Tribe attended these meetings where the individuals
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 11
discussed issues surrounding Potential Change Orders. (2RT398:7-11; 2RT419:20-23)
Mr. Jones testified that on June 6, 2005, he attended a regularly scheduled a
meeting with Mr. Kanj, Mr. Frasier, a representative of the architect, and Ben Foster to
discuss the project’s progress. (2RT424:3-425:3) At that time, weather had delayed the
project. (2RT425:4-429:3) At the meeting, Big D Construction informed Mr. Kanj that it
could not proceed without approval of certain PCOs. Mr. Kanj responded that Big-D
would have to proceed and consult an attorney to pursue the cost of the changes at the end
of the project. (2RT444:14-445:23) A second meeting was held that same day because
Mrs. Roach wanted to get an update from Big D on the project. Mr. Kanj was not invited
to this meeting between Mrs. Roach, Mr. Frasier (the president of Big D), and Alan
Barrett. (2RT450:17-451:25) Mr. Jones told Mrs. Roach that he was concerned about the
delays in the project and how Mr. Kanj was running the project. He said Mrs. Roach
needed to intervene because the bi-weekly meetings were at an impasse on certain issues.
(2RT456:6-457:13) Certain PCOs referred to deficiencies in architectural documents,
and needed to be decided before construction could continue. (2RT467:12-469:5)
However, Mr. Jones also testified that it is common for an owner’s representative
to “butt heads” with contractors over PCOs. (2RT440:14-19) Furthermore, dealing with
PCOs is not what necessarily holds up projects, because it is possible to deal with them at
the end of a project. (2RT434:5-16) In discussing the delay on the gymnasium project,
Mr. Jones recognized that weather had been the main source of delay. (2RT428:12-
431:12) Mr. Jones also testified that determining when a PCO could be addressed
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 12
depended on provisions existing in the contract for the project, and he had not reviewed
the contract for the construction of the gymnasium. (2RT440:20-441:15 and
2RT439:15:20) The Tribe did not identify any specific change orders that Mr. Kanj failed
to resolve which caused any delay.
iii. Don McDermott
Mr. McDermott worked for Viejas from 1991-2007. (2RT503:16) He is certified
in California by the Department of Health Services in Grade 1 Water Treatment
Operation and Grade 2 Water Distribution. (2RT503:21-504:2) Mr. McDermott was
responsible for signing water quality reports for the Tribe, the State and the EPA.
(2RT505:1-6) He testified that it was his responsibility to report the fecal coliform in the
water to the Tribe. (2RT505:19-24)
Mr. McDermott also testified that Mr. Hyde had significant influence on the Tribe
and its actions. (2RT514:24-25) Mr. Hyde asked Mr. Kanj to leave, which he hesitated
to do. (2RT521:1-20) At that meeting, Mr. Hyde said that the cattle in the stream were
not hurting anything. Mr. Hyde tied his rejection of the fencing idea to his conviction that
the animals belonged to the Tribe, and he wanted to maintain their presence on the
reservation. (2RT514:7-12) Mr. Hyde also rejected the idea that the animals were
actually hurting the environment. (2RT514:7-12) In Mr. Hyde’s view, the creek was the
water source for the cattle, and he had expressed that the cattle were his life, and leaving
them undisturbed on the reservation went hand in hand with maintaining the traditions
and culture of the Tribe. (2RT523:13-20 and 2RT513:20-514:3)
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 13
About a year after Mr. Kanj’s termination, fences were finally built around the
creek and the retention ponds by Alan Barrett. (2RT524:1-8)
iv. Bobby Barrett
The Tribal Council elected Bobby Barrett as the Chairman in January 2008. He
previously served as Vice Chairman. (3RT579:13-580:2) Mr. Barrett testified that the
Tribal Council denied Mr. Kanj’s vacation request because his contract only allowed a
vacation of 10 consecutive days, and there was the gymnasium project going on
underway. (3RT584:10-17) Shortly after the Council denied Mr. Kanj’s vacation and his
request for reconsideration, Mrs. Roach told the Tribal Council that Mr. Kanj was
interested in a severance package. (3RT585:21-25)
While Mr. Kanj was on his 10-day vacation, his duties fell to Mrs. Roach. During
that time she approached the Council to advise them that she was unhappy with Mr.
Kanj’s work and wanted to terminate his employment. (3RT588:1-13) Mr. Barrett
denied that Tom Hyde and the creek pollution had anything to do with the Tribe’s
decision to fire Mr. Kanj. (3RT591:9-15) Mr. Barrett testified that he thought highly of
Mr. Kanj and believed Mr. Kanj is an honest person. (3RT603:2-5) Mr. Barrett played in
Viejas Creek as a child. (3RT618:13-15) But during his tenure as Tribal Chairman, and
during the time of Mr. Kanj’s employment, he saw the children playing in the creek
which he knew to be contaminated.
v. Wendy Roach
Mrs. Roach is the Tribal Government Manager at Viejas. (4RT885:3) She testified
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 14
she became concerned about Mr. Kanj’s performance in Spring of 2005, when he
allegedly could not explain an equation to calculate the charge for water usage at the
Viejas casino. (4RT888:10-889:10) She stated that she had also received complaints
about his work on the gymnasium project. (4RT889:14-890:1) Mr. Kanj also supervised a
water reclamation project that was not complete when he requested a month off.
(4RT890:17-891:15) Mrs. Roach felt that Mr. Kanj’s request for a vacation in the middle
of several important projects was not appropriate. (4RT892:14-893:6) She claimed that
was also concerned about Mr. Kanj’s commitment when he told her to ask the Council for
either a three week vacation or a civilized way to sever their relationship. (4RT894:9-19)
Mrs. Roach held a meeting with Big D employees and Tribe representatives to
discuss the gymnasium project, but did not invite Mr. Kanj because the meeting was to
discuss problems he was allegedly causing. (4RT902:2-12) Prior to this June 6, 2005
meeting, Mrs. Roach conceded that no complaints had been made about Mr. Kanj’s work
on the project, yet within 12 days of this meeting (and without discussing the meeting
with Mr. Kanj), Mrs. Roach decided to terminate his employment. (4RT911:5-17) The
factors Mrs. Roach considered in her decision were that she believed the Tribe was
getting a “bad reputation” due to Mr. Kanj’s refusal to grant change orders, problems with
the budget, that Mr. Kanj had asked to sever the relationship, and his apparent lack of
dedication. (4RT911:21-912:23)
Mrs. Roach decided to discuss Mr. Kanj’s termination with the Tribal Council.
(4RT913:1-24) Although Mrs. Roach testified that Mr. Kanj’s apparent lack of dedication
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 15
was her primary reason for terminating him, her report to the Tribal Council did not make
any mention of this reason. Instead she referred to problems with the contract with Big-
D, which Mr. Kanj had not created, in addition to problems with the change orders, and
the bad relationship between Mr. Kanj and Big-D. (4RT913:1–20)
Although Mrs. Roach was aware that Mr. Kanj had reported to the Council on the
contamination of Viejas Creek, she claimed that it was not a factor in her decision to
terminate Mr. Kanj. (4RT915:1-10) She also denied that Mr. Hyde had any involvement
in the decision to terminate Mr. Kanj’s employment with the Tribe. (4RT915:15-20)
Mrs. Roach testified that she did not give Mr. Kanj an evaluation because she had
not worked with him long enough. If he had not been terminated, she claims she would
have given him an evaluation and considered a salary increase. (4RT918:21-919:1) Mrs.
Roach stated that she never asked Mr. Kanj not to go to General Council meetings. She
denied instructing Mr. Kanj to withhold approval of change orders. (4RT919:18-920:5)
Incredibly, Mrs. Roach testified that she did not recall seeing a letter from Mr.
Kanj’s attorney dated June 7, 2005 (prior to the termination), in which he claimed he was
being treated unfairly for reporting CWA violations. (4RT965:9-14) The ALJ pointed out
how incredulous it was that Mrs. Roach would not have seen this letter, even though she
used to work closely with Diane Vitols (to whom the letter was addressed), and that she
was present at a meeting held shortly after the letter was received. (4RT966:1-968:19)
vi. Virginia Christman via Deposition Testimony
Mrs. Christman was a Tribal Council member at the time of Mr. Kanj’s hiring, but
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 16
she was not a member at the time of Mr. Kanj’s termination. (Depo. of Christman at
6:19-23) She testified that cattle had been roaming the reservation since before she was
born. (Id. at 38:17-20) She thought Mr. Kanj was a nice person, that he was sincere about
doing his job and responsive to requests. (Id. at 40:20-41:8) The gymnasium was a result
of Mrs. Christman’s dream, and she, Mr. Kanj, and other Tribal Council members made it
a reality. (Id. at 45:12) She stated that Mr. Kanj had an interest in the gymnasium, he
cared about it, and he enjoyed seeing it being built. (Id. at 48:3-9) She was surprised
when she heard that Mr. Kanj was no longer working for Viejas. (Id. at 54:19) She has
never seen anyone on the Tribal Council express animosity toward Mr. Kanj, nor ask Mr.
Kanj to leave a meeting. (Id. at 73:10-74:20) She did not believe Tom Hyde had any
influence over the Tribal Council and their decisions. (Id. at 75:7-76:14)
vii. Tom Hyde via Deposition Testimony
Mr. Hyde is a Tribal Elder of the Viejas Band who has lived on the Viejas
reservation since 1934, when he moved there at the age of seven. (Hyde Depo. at 6:3-7:9)
He owns cattle that graze on the reservation. (Id. at 21:15-22:1) Mr. Hyde testified that
he was civil toward Mr. Kanj, but he admitted did ask him to leave his house on one
occasion because he felt Mr. Kanj was being offensive. (Id. at 39:11-40:4). Mr. Hyde
was not concerned with whether his cattle were polluting the creek, because he felt other
animals polluted it as well. (Id. at 52:1-16) Mr. Hyde denied recommending that the
Tribe fire Mr. Kanj. (Id. at 64:2-4) He did not know what Wendy Roach did for the
Tribal Government. (Id. at 75:8-17)
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 17
viii. Anthony Pico via Deposition Testimony
Mr. Pico was the Chairman of the Viejas Tribe from 1995 to January 2007. (Pico
Depo. at 7:13-19) He denied knowing why Mr. Kanj was terminated, and claimed to find
out after the fact. (Id. at 15:15-20) Diane Vitols had no part in the decision-making
process of the tribal government. (Id. at 16:4-16) Mr. Pico denied discussing fencing the
cattle with Mr. Hyde, or Mr. Hyde’s opinion of Mr. Kanj. (Id. at 18:20-25) Mr. Pico
admitted missing many meetings due to back surgery in 2005 and 2006. (Id. at 21:4-23:5)
Mr. Pico did not think the Tribal Council was angry with Mr. Kanj before they
were sued by him (Id. at 26:21-27:2), and had never heard a member of the Council or
other tribal members criticize Mr. Kanj. (Id. at 27:19-23) While Mr. Pico did not
specifically recall Mr. Kanj making a presentation about the contamination of Viejas
Creek in 2003, he knew that Mr. Kanj made such a presentation or report to the Council.
(Id. at 29:1-30:6) The Tribal Council votes on all matters pertaining to the use of tribal
lands. (Id. at 40:16-24) Mr. Pico testified that, about 20 years prior, the Council received
complaints about cattle damaging property, and voted to let the cattle roam the open
pasture and have individuals fence their property to keep cattle out. (Id. at 41:20-42:24)
Mr. Pico heard about the meeting at Mr. Hyde’s house with Mr. Kanj regarding the
cattle in the creek, and he remembers hearing that the meeting was not productive. (Id. at
47:12-22) Mr. Pico admitted Mr. Kanj asked him to help communicate with Mr. Hyde,
but Mr. Pico did not recall speaking to Mr. Hyde about it. (Id. at 51:15-52:20)
Mr. Pico did not recall reading a June 8, 2005 letter from Viejas stating that Viejas
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 18
was at a critical point on several projects, but he understood that to be the situation. (Id.
at 78:8-23) Mr. Pico heard Mrs. Roach indicate that she was unhappy with Mr. Kanj, but
he could not recall when that communication occurred. (Id. at 86:20-87:3) Mr. Pico did
not remember Mr. Hyde telling the Council to get rid of Mr. Kanj. (Id. at 95:1-4) Mr. Pico
remembered that Mr. Kanj was asked not to attend the General Council meeting right
after the meeting at Mr. Hyde’s house. (Id. at 100:21-103:5)
ix. Brian Frasier via Deposition Testimony
Mr. Frasier was a project manager for Big D Construction. (Frasier Depo. at 12:6-
7) Mr. Frasier was Big D’s project manager for the construction of the Viejas
gymnasium, and was involved from the onset of that project. (Id. at 22:25-23:7) Mr.
Frasier met every other Monday with Mr. Kanj and other representatives from Viejas and
Big D. (Id. at 24:14-25:6) Mr. Frasier stated that there were a lot of problems on the
Viejas gymnasium project, the biggest one in his opinion was the design and
constructability of the facility. (Id. at 26:25-27:15)
The scheduled completion date for the gymnasium was October 2005, but it was
actually completed in December 2005. (Id. at 28:6-15) The project was behind schedule
due to weather delays, and Mr. Jones also claimed that the project was behind because
questions about design and construction were not being answered and PCOs were not
approved. (Id. at 28:21-14) Mr. Frasier and Mr. Kanj were civil to one another, but the
relationship was argumentative, especially when they talked about money. (Id. at 30:22-
31:14) Mr. Blackman, the architect, told Mr. Frasier that the gymnasium project had been
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 19
designed several years before the start of construction, and that some modifications were
done to lessen the cost. (Id. at 34:10-35:16)
Mr. Frasier felt that the competing interests of the contractor, the architect, and Mr.
Kanj (as the Viejas representative), were causing tension and delays in the project. (Id. at
37:12-38:5) Mr. Frasier felt that the architect and Mr. Kanj were not reviewing change
orders in a timely manner or rejecting them outright. He continued with construction but
discussed that Big D would need to be paid eventually for the changes. (Id. at 41:17-
42:18) Mr. Kanj told Mr. Frasier that Big D should proceed with construction and
recovery of any additional costs. (Id. at 50:1-11) To Mr. Frasier’s recollection, Mr. Kanj
told him that he was taking a month off and may or may not come back. (Id. at 56:9-12)
Mr. Frasier contacted Mrs. Roach to set up a meeting because he felt that he was not
getting direction from the Tribe about how to proceed on the changes. (Id. at 58:6-12)
Mr. Frasier readily admitted that it was Mr. Kanj’s job, as a steward of the Tribe’s
resources, to question change orders. (Id. at 106:9-16) After June 6, 2005, Mr. Frasier
never saw Mr. Kanj again. (Id. at 162:2-7) Mr. Frasier was surprised not to see Mr. Kanj
anymore, and he was told only that Mr. Kanj would not be returning to the project. (Id. at
163:12-22) In Mr. Frasier’s opinion, Mr. Kanj did not understand what was being
discussed at the construction meetings, and seemed uninterested in the details. (Id. at
164:2-17) Mr. Frasier understood that the parking lot to the gymnasium was to be
completed for a July 4 picnic, but not the entire project. (Id. at 268:20-269:8)th
x. Penelope Culbreth-Graft via Deposition Testimony
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 20
Mrs. Culbreth-Graft worked with Mr. Kanj both at the City of San Diego and at
Viejas. (Culbreth-Graft Depo. at 8:16-20) It was her decision to hire Mr. Kanj as the
director of Public Works at Viejas. (Id. at 10:23-25) She was the Tribal Government
Manager at Viejas from 2000 through 2003. (Id. at 6:22-7:4)
In performance evaluations of Mr. Kanj, Mrs. Culbreth-Graft stated that he needed
to keep focused on updating the Council on projects and finding ways to communicate.
(Id. at 32:12-17) Mrs. Culbreth-Graft gave Mr. Kanj an overall “Outstanding” grade on
both of her evaluations of his job performance. (Id. at 42:21-43:4; 48:12-14; Compl. Ex.
10 and 14) She stated that if she was required to do a resolution to hire somebody as was
the case for Mr. Kanj’s position, typically she would be required to submit a resolution of
the Tribal Council to terminate that employee. (Id. at 55:3-5) Mrs. Culbreth-Graft stated
she did not regret hiring Mr. Kanj, and has no recollection of Mr. Kanj’s reports of
contamination in Viejas Creek. (Id. at 56:13-21)
xi. Phillip Kaushall (Expert)
Dr. Phillip Kaushall is a psychologist licensed to practice in the State of California.
(2RT288:9-13) He attained his B.A. in psychology at Bristol University in England, an
M.A. in psychology from Simon Fraser University in British Columbia, Canada, and his
Ph.D. from Cornell University in New York. (2RT288:14-20) Dr. Kaushall was a
qualified medical evaluator, which authorized him to do evaluations for workers alleging
work-related injuries, specifically, psychological injuries. (2RT290:1-9)
Dr. Kaushall assessed Mr. Kanj’s emotional state, and the effects of his work-
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 21
related stress suffered at the Tribe, in order to help determine damages. (2RT292:6-11)
Dr. Kaushall performed both informal and formal investigations of Mr. Kanj, including
an MMPI test consisting of 567 self-descriptive questions. (2RT292:20-293:17) He also
reviewed Mr. Kanj’s medical records, which included the psychotropic medications Mr.
Kanj had been taking. (2RT295:2-12)
Dr. Kaushall concluded from his interviews, tests, and Mr. Kanj’s medical records,
that Mr. Kanj was severely stressed from the harassment he experienced at work, and that
it had an effect on both his mental and physical state. (2RT298:5-9) The MMPI test
showed that Mr. Kanj’s stress levels were significantly high. Dr. Kaushall testified that
had he not personally met with Mr. Kanj, but would have determined that Mr. Kanj would
need to be institutionalized based on the numbers. (2RT298:5-20) Mr. Kanj’s self-esteem
was low, he showed symptoms of anxiety, and he had a “morbid preoccupation with
issues and socially isolating and things that would be really dysfunctional.” (2RT298:21-
25) The MMPI includes a mechanism to determine whether an individual is attempting to
over-emphasize or under-emphasize his mental condition; Dr. Kaushall determined that
Mr. Kanj was doing neither. (2RT299:17-300:5)
xii Edward Rose (Expert)
Edward Rose is an attorney and CPA, having passed the California Bar Exam in
1995 and the CPA exam in New York in 1981. (1RT167:3-15) Mr. Rose’s area of
practice included business litigation and tax litigation, which he has practiced since 1995.
He estimated at trial that he had testified as an expert witness approximately four times in
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 22
other trials to determine damages for a plaintiff. (1RT169:3-10)
Mr. Rose calculated the damages in this case by analyzing Mr. Kanj’s July 15,
2003 Employment Agreement, focusing on his base salary, performance bonus, medical
benefits, and 401k plan. (1RT171:20-172:12) Mr. Rose looked at the difference in pay
between Mr. Kanj’s position with Viejas and his subsequent employment with Bahrain
Oil Company. (1RT173:1-16) Mr. Rose concluded that, over the course of Mr. Kanj’s
work life, he will have lost $2,550,000 in lost salary due to the termination. (1RT174:4-
22) He also calculated Mr. Kanj losing $3,000 per month in future dollars for a period of
about 15 years (assuming Mr. Kanj would live to approximately 71) for the loss of social
security benefits. Mr. Rose also calculated back pay for the period of January 2003 to
September of 2004 in the amount of $69,198. (1RT175:3-16) In total, Mr. Rose
concluded that Mr. Kanj’s damages were in the range of $3,000,000. (1RT175:17-18)
IV. JURISDICTION
The environmental whistle blower statutes authorize the Department of Labor
(“DOL”) to hear applications of alleged discrimination in response to protected activity
and, upon finding a violation, to order abatement and other remedies. (42 U.S.C. §
6971(b)) The ARB has been delegated the authority to act for the Secretary of Labor to
review decisions of the ALJ and issue final decisions. (29 C.F.R. § 24.8)
V. STANDARD OF REVIEW
At the time of filing, 29 Code of Federal Regulations section 24.8 was the
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 23
controlling law for the standard of review for ARB, which called for de novo review of
both factual and legal issues. The section provided as follows:
Any party desiring to seek review, including judicial review, of a
recommended decision of the administrative law judge shall file a petition
for review with the Administrative Review Board...If a timely petition
review is filed, the recommended decision of the administrative law
judge shall be inoperative unless and until the Board issues an order
adopting the recommended decision....”
(29 C.F.R. § 24.8 [emphasis added])
As this law was in effect at the time of filing, it should therefore be applied
Although the ARB has changed the standard of review since Mr. Kanj’s filing, the
complaint should not be subject to retroactive application of this new standard.3
Specifically, “retroactivity is not favored by the law. . . Even where some
substantial justification for retroactive rulemaking is presented, courts should be reluctant
to find such authority absent an express statutory grant.” (Bowen v Georgetown Univ.
Hosp., 488 U.S. 204, 208-209 (1988)) In Jay v. Alcon Laboratories, Inc., the ARB held
that even though the DOL had amended 29 C.F.R. 24 since the complainant filed his case,
the ARB had to apply the regulations in effect at the time the complaint was filed. (ARB
No. 08-089, slip op. at 3, ALJ No. 2007-WPC-2 (ARB April 10, 2009)) Moreover, the
ARB has applied the regulations in effect at the time of the filing of a complaint when the
DOL has not indicated that the new regulations were to be applied retroactively.
Presently, the ARB reviews the ALJ’s conclusions of law de novo (29 C.F.R. §3
24.110(b)), and reviews the factual findings under the substantial evidence standard. (Id.)
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 24
(Schafermeyer v. Blue Grass Army Depot, ARB Case No. 07-082, slip op. at 2, fn. 3
(ARB September 30, 2008)) Here, even if the ARB were to apply the substantial evidence
standard from 29 C.F.R. § 24.110(b), it would still find that the decision of the ALJ is not
supported by substantial evidence.4
VI. ARGUMENT
Section 507(a) of the CWA, 33 U.S.C. 1367(a), states, in relevant part:
“No person shall fire, or in any other way discriminate against, or
cause to be fired or discriminated against, any employee . . . by
reason of the fact that such employee . . . has filed, instituted, or
caused to be filed or instituted any proceeding under this chapter, or
has testified or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this chapter.”
To state a claim under the whistle blower provision of an environmental statute,
the plaintiff must establish that his employer retaliated against him because he engaged in
a protected activity. (Sasse v. United States DOL, 409 F. 3d 773, 779 (6 Cir. 2005)) Theth
court may find that a violation has occurred only if the complainant has demonstrated by a
preponderance of the evidence that the protected activity was a “contributing” factor in
the adverse employment action. (Speegle v. Stone & Webster Constr., Inc., ARB No. 06-
041, ALJ No. 2005-ERA-006, slip op. at 8. (ARB Sept. 24, 2009)) A contributing factor
is “any factor which, alone or in connection with other factors, tends to affect in any way
“Substantial evidence” means such relevant evidence as a reasonable mind might4
accept as adequate to support a conclusion. (Getman v. Sw. Sec., Inc., ARB No. 04-059,
ALJ No. 2003-SOX-008, slip op. at 7 (ARB July 29, 2005)) As detailed here below,
because the ALJ did not consider relevant material facts, and attributed statements to
witnesses that they did not make, the decision of the ALJ is not based on substantial
evidence.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 25
the outcome of the decision.” (Id. at 9) The elements of a prima facie case are:
1. Complainant engaged in protected activity, as defined by relevant statute and
regulations;
2. Respondent had knowledge of the complainant engaging in the protected
activity;
3. Respondent subjected the complainant to an adverse employment action; and
4. Complainant’s engagement in the protected activity was a contributing factor in
the unfavorable personnel action.
(Id. at 8)
An employee must prove, by a preponderance of the evidence, that his protected
activity was a contributing factor in the adverse action. (Pierce v. U.S. Enrichment Corp.,
ARB No. 06-055-058, -119, ALJ No. 2004-ERA-001, slip op. at 11 (ARB Aug. 29,
2008)) An employer engages in adverse action when it discharges or otherwise
discriminates against an employee “with respect to his compensation, terms, conditions,
or privileges of employment because the employee” engaged in protected activity. (Id.)
Mr. Kanj has satisfied the four elements to substantiate a claim for retaliation by
the Tribe for his whistle blowing. Mr. Kanj has proven by a preponderance of the
evidence that his reports of the contamination of the creek were a contributing factor in
the adverse changes to his employment, including his ultimate termination. The Viejas
Tribe cannot show by clear and convincing evidence that it based the decision to
terminate Mr. Kanj on legitimate reasons alone, because the pretextual reasons for Mr.
Kanj’s termination (i.e., reasons created for litigation)were not documented until after Mr.
Kanj first complained of the adverse employment actions.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 26
A. Mr. Kanj Engaged in Protected Activity
The record demonstrates that Mr. Kanj was engaged in protected activity in
reporting to the Tribe about the water pollution, because it was not within his job
description to report on water quality of the Creek. At trial, the Tribe admitted Mr. Kanj
had an objective and subjective basis for the complaints he made regarding the fecal
contamination. (1RT64:14-66:4) The ALJ agreed that Mr. Kanj engaged in protected
activity. In making its conclusion, the ALJ even went so far as to discount the importance
of job descriptions in determining the meaning of protected activity:
[T]he scope of Kanj’s job duties is ultimately not a determinative issue with
respect to the Court’s analysis of this claim, and accordingly, I decline to
restrict whistleblower protection to individuals such as Kanj on the basis
that he was only doing his job. Thus, I find that Complainant did engage in
protected activity within the meaning of the Act.
It is important to note that it was Don McDermott’s responsibility to make reports
to the Tribal Council every two weeks, and he was designated to sign water quality
reports for the Federal regulatory agencies. (2RT504:8-505:7; 2RT508:9-12) Thus, Mr.
Kanj was acting outside the scope of his employment when he reported the contamination
of Viejas Creek to the Tribal Council, and the first element of his retaliation claim is met.
B. The Tribal Council and Mrs. Roach Had Knowledge of the Reports
Mr. Kanj Continually Made About the Pollution of Viejas Creek
Although the ALJ found this element was also satisfied, Mr. Kanj will briefly
discuss it. In order to satisfy this element it must be shown that someone in a position to
affect the complainant’s employment must have known of the protected activity before
the adverse action was taken. (Shirani v. Comed/Exelon Corp., ARB No. 03-100, ALJ
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 27
No. 2002-ERA-28 slip op. At 9-10 (ARB Sept. 30, 2005)) Because Mr. Kanj made
presentations to the Tribal Council, and submitted reports to them about the
contamination over a two-year period, the Council and Tribal Government Manager
Wendy Roach had notice that Mr. Kanj was reporting on the contamination of Viejas
Creek before Mr. Kanj’s employment was terminated.
Mr. Kanj made his first report of fecal coliform contamination in March 2003
through a ten minute presentation at a General Council meeting, and proposed fencing off
the creek to abate the contamination problem caused by the Tribe’s cattle. (1RT265:24 -
268:22; Compl. Ex. 25) Mr. Kanj continued to report the contamination for over two
years, as he rightly viewed it as a serious matter being ignored by those in charge.
(2RT368:1-10; 2RT378:1-3) In January of 2005, he made another presentation of the
contamination when new members were elected to the Council. (2RT367:14-368:10) By
reporting the contamination to the Tribal Council, Respondents had ample notice that Mr.
Kanj had engaged in protected activity leading up to his termination.
But the ALJ noted, which Mr. Kanj contests, that the contamination reporting and
Mr. Kanj’s termination were not proximate in time (i.e., the reporting began in 2003, two
years before his termination). However, the reporting continued throughout the two years
at issue, during which time the Tribe ceased giving Mr. Kanj job performance reviews, as
was required by the terms of his employment. These other adverse actions began soon
after his initial report on the contamination in March 2003. Specifically, after Mr. Kanj’s
initial report, he received no further performance evaluations and only one salary
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 28
increase. The failure to provide annual evaluations was an undisputed departure from the
Tribe’s standard evaluation process, and reflects that Mr. Kanj’s whistle-blowing resulted
in immediate adverse employment actions, culminating in Mr. Kanj’s termination.
The “investigation” occurred immediately after a June 2, 2005 letter sent by Mr.
Kanj’s attorney rejecting the proposed severance agreement and notified the Tribe’s
counsel that Mr. Kanj had claims against the Tribe. (Compl. Ex. 177) The termination
also followed on the heels of a June 7, 2008 letter from Mr. Kanj’s attorney, which
accused the tribe of unfair treatment resulting from Mr. Kanj’s persistant contamination
reports done to the chagrin of Mr. Hyde and the Tribe. (Compl. Ex. 41)
C. Adverse Employment Conduct the ALJ Did Not Address
While the ALJ’s decision briefly addressed the fact that Mr. Kanj did not receive
performance evaluations and salary increases after his whistle blowing, the decision
ignored other retaliatory actions of the Tribe. An employer engages in adverse action
when it discharges or otherwise discriminates against an employee “with respect to his
compensation, terms, conditions, or privileges of employment because the employee”
engaged in protected activity. (Pierce, supra at 11) Viejas subjected Mr. Kanj to
discrimination through the refusal to grant his vacation request, and no longer inviting
Mr. Kanj to participate in Tribal events and meetings. Mr. Kanj’s employment with the
Tribe was terminated on July 25, 2005, but Mr. Kanj demonstrated that there were other,
prior adverse employment actions which created a hostile work environment.
i. Discrimination that Created a Hostile Work Environment
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 29
To substantiate a claim of hostile work environment, the harassment complained of
must have been serious enough to have detrimentally affected a reasonable person, and
did in fact detrimentally affect the complainant. (Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)) Here, as a reflection of the frequency and seriousness of the problem, Mr.
Kanj documented the harassment he suffered while working for the Tribe. Specifically,
he kept a “Harassment Log” at the suggestion of Ms. Culbreth-Graft, who was then the
Tribal Government Manager. (Compl. Ex. 94) The record shows that Mr. Kanj suffered
harassment which was pervasive and would have detrimentally affected any reasonable
person, and did in fact detrimentally affect Mr. Kanj. (2RT296:20-298:9)
As examples, Mr. Kanj was no longer invited to Tribal events and meetings which
he regularly attended due to the hostility from Tribal Elder Tom Hyde, the main person
opposed to remedying the creek contamination. (2RT352-355; 2RT356:2-20; Compl. Ex.
94) In light of Mr. Hyde’s position of influence, the evidence showed the negative
treatment of Mr. Kanj contributed to a hostile work environment. Mr. Hyde’s expressed
animosity caused Mr. Kanj to be unable to perform his job functions at the level he
otherwise would have. Mrs. Roach even told Mr. Kanj he should not attend the General
Council after he had made the presentations regarding the fecal contamination, despite
having previously attended those meetings. (2RT356:2-20)
Additionally, Mr. Kanj alerted members of the Tribal Council to the fact that Mr.
Hyde’s behavior made it difficult for Mr. Kanj to comfortably perform his job and attend
meetings, and, although they promised to help, Council members did nothing to remedy
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 30
the situation. (Compl. Ex. 94) This, coupled with the fact that Mr. Hyde’s relatives made
up the majority of members on the Tribal Council, reasonably suggests an inference that
Mr. Hyde had extensive influence over the Tribal Council. (2RT351:13-354:23) For these
reasons, Mr. Hyde’s actions, and the Tribal Council’s conforming to his influence,
contributed to the creation of a hostile work environment for Mr. Kanj.
ii. The Tribe’s Refusal of Mr. Kanj’s Vacation Request
It is also circumstantial evidence of a contributing factor that the Tribe denied Mr.
Kanj’s vacation request to care for his sick parents. That decision served as punishment
for the protected activity. Mr. Kanj had taken a similarly extended vacation in 2002, at a
time when the Tribe had even more projects underway. (1RT160:5-8) Of course, this
occurred before Mr. Kanj reported on the CWA violations, where he advised that the
Tribe’s cattle be fenced to prevent further contamination of the water supply.
Mr. Kanj was told when he was hired that the 10-day vacation limit stated in his
contract was relaxed, and was only a means of preventing people from taking too many
long vacations. (1RT160:11-21) Mr. Kanj had not taken more than a five day vacation in
three years, and needed to go to Lebanon to see his elderly parents, both of whom had
recently undergone surgery. (2RT385-86) Mr. Kanj informed Mrs. Roach that the reason
for his vacation request was to visit his ailing elderly parents. (2RT385:5-10)
In light of the Tribe’s rejection of his request, Mr. Kanj took the limited 10-day
vacation. (2RT554:20-555:9) And, despite making the termination decision prior to Mr.
Kanj’s return, the Tribe chose to keep the information of Mr. Kanj’s termination a secret
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 31
until he had returned from his 10-day vacation, so that he did not have the option of
enjoying the needed time with his parents. Although Mr. Kanj was not terminated for
cause, the Tribe terminated him in such a way as to maximize inconvenience and
disruption. The ALJ did not consider this evidence reflecting the Tribe’s intention to
harm Mr. Kanj, arising from Mr. Kanj’s reports over the fecal coliform contamination.
Despite the so-called reasons the Tribe listed after litigation commenced, Mr. Kanj was
not terminated for “cause” under his contract. (Compl. Ex. 35 and 9)
iii. Denial of Performance Reviews and Salary Increases
Despite having asked his superiors many times, Mr. Kanj was denied both salary
increases and yearly performance evaluations once he began reporting on the fecal
coliform contamination of the Viejas Creek. (1RT264:7-25) Mr. Kanj made his first
report of fecal coliform contamination in Viejas Creek in March 2003. After that initial
report, Mr. Kanj received no performance evaluations and only one raise. (2RT359:1-12;
Compl. Ex. 105) Even the context of the one salary increase is consistent with Mr. Kanj’s
reporting. In March 2003, Mr. Kanj’s report and suggestion to fence the creek were met
with a great deal of opposition from Mr. Hyde, at which point the Tribe decided to take
no action on the matter. As a result, the relationships between between Mr. Kanj, the
Tribe, and Mr. Hyde became strained. In response, Mr. Kanj “cooled off” on making
reports to the Tribe for a short time. (2RT343:21-344:15) Thus, in the months preceding
his final pay increase, Mr. Kanj had temporarily stopped making reports of fecal coliform
contamination. Thereby raising an inference that if Mr. Kanj had stopped pestering the
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 32
Tribe, all would have been well.
During the two year period between July 2003 and his termination in July 2005,
Mr. Kanj received only one salary increase. (Compl. Ex 105) The Tribe’s purported
reason for not giving him a performance evaluation was that Mrs. Roach was not familiar
enough with his performance. This is an incredulous explanation. Mr. Kanj had worked
for Viejas since 2001. Someone in a senior position was clearly able to evaluate his job
performance, as had been done on two prior occasions. Additionally, because he knew
other directors were receiving increases and evaluations, Mr. Kanj expressly asked Bobby
Barrett, the Vice-Chairman and Mr. Kanj’s contact person on the Tribal Council, for a
performance evaluation and a salary increase many times. Mr. Kanj never received
either, nor an explanation for the refusal to provide them. (1RT262:11-18)
The refusal to give performance evaluations is, by itself, an adverse employment
action altering the terms of Mr. Kanj’s employment. Upon terminating Mr. Kanj, the
Tribe identified several areas where it believed Mr. Kanj was not doing a good job.
However, because the Tribe had refused to give him a performance evaluation, his ability
to defend himself against these claims was undermined by the Tribe. When Mr. Kanj left
for Lebanon, Mrs. Roach claims to have quickly learned of these alleged problems with
his work performance, which had never been brought to Mr. Kanj’s attention before.
D. Mr. Kanj Has Shown by a Preponderance of the Evidence that His
Engagement in Protected Activity Was a Contributing Factor in His
Termination
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 33
The complaining employee can succeed either directly, with “smoking gun”
evidence linking the protected activity to the adverse action, or indirectly with
circumstantial evidence. (Sievers v. Alaska Airlines, Inc., ARB No. O5-109, ALJ No.
2004-AIR-028, slip op. at 4-5 (ARB Jan. 30, 2008))
The claims of Mr. Kanj’s deficient performance must be considered in the context
that Mr. Kanj was not terminated for “cause” under his contract, and the lack of any
written documents of concern regarding his performance. Mr. Kanj must prove by a
preponderance of the evidence that his protected activity was a contributing factor in the
adverse action. (Pierce, supra at 11) The ALJ failed to apply the proper legal standard by
analyzing the alleged justifications for Mr. Kanj’s termination. Regardless of whether
there are other reasons, if the termination was influenced by the protected activity Mr.
Kanj is legally entitled to relief by virtue of the decision having been “in connection with
other factors” considered in the termination. (Speegle, supra at 9)
An aspect of this case which was wholly ignored by the ALJ was whether Mr.
Kanj’s protected activity was a contributing factor by itself. Instead, the ALJ’s approach
seemed to be to attempt to validate the ulterior reasons as a basis for showing that the
protected activity did not contribute to Mr. Kanj’s termination. This approach mistakes
the appropriate standard. Specifically, the ALJ concluded:
The undersigned finds that Viejas’ two overarching reasons for terminating
Kanj–Kanj’s allegedly poor work performance, specifically in relation to
his supervision of the gymnasium construction project, and Kanj’s apparent
lack of commitment, as evidenced in the manner and timing in which he
requested his vacation leave—are sufficiently grounded in the evidence and
adequate bases for Kanj’s termination.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 34
(ALJ Decision 48)
i. Mr. Kanj’s Reports Received as Unwelcome Requests for
Changing Tribal Traditions and Culture
The conclusion of the ALJ ignores the standard for “contributing factor,” which
dictates that a contributing factor may be any factor which alone, or in connection with
other factors, affects the decision made, and the ALJ’s analysis is silent on the
contributing nature of Mr. Kanj’s whistle blowing. The ALJ noted that Mr. Hyde placed
cultural significance on his cattle remaining on the Tribe’s land. However, it ignores this
fact as being clear evidence of a motive to terminate Mr. Kanj, who sought to alter the
land in a way which may have altered the presence of cattle. (ALJ Decision p.17)
Fencing off the Creek would have altered the way the cattle lived on the land, which was
considered by Mr. Hyde, and possibly others, to be a violent act against the culture and
traditions of the Tribe. (2RT513:20-514:3)
Furthermore, Donald McDermott, who was found by the ALJ to be a very credible
witness, with no stake in the outcome of the case, specifically noted Mr. Hyde’s
“considerable influence on the Tribe and its actions.” (2RT514:24-25) Mr. Hyde’s
intense and hostile reaction against putting up fences coupled with Mr. Hyde’s ability to
influence the Tribe’s actions, is evidence of the motive to have Mr. Kanj discriminated
against and terminated.
In addition, the argument of an absence of temporal proximity between Mr. Kanj’s
initial report in March of 2003 and his termination in June of 2005 ignores two points.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 35
(Dec. and Order 40-41) First, after his initial report in March of 2003, Mr. Kanj backed
off from reporting pollution to the Tribe in an effort to let things “cool down.” Therefore,
the ALJ was mistaken to merely analyze temporal proximity based solely on the first
report. Mr. Kanj made several reports to the Tribal Council regarding contamination.
Specifically, Mr. Kanj received reports of fecal contamination from the Environmental
Engineering Laboratory (“EEL”) from samples taken on February 20, 2004, January 25,
2005, March 1, 2005, March 24, 2005, and April 6, 2005, which he then reported to the
Tribal Council. (Compl. Ex. 144, 29, 31) The ALJ mistakenly analyzed the initial report
in isolation, however, it is clear that the reports coming in from the EEL were increasing
in the months leading up to Mr. Kanj’s termination.
Second, as detailed above, the Tribe did in fact treat Mr. Kanj negatively after the
first request. Finally, the ALJ ignored the temporal proximity between the letter from Mr.
Kanj’s counsel on June 7, 2005 (which accused the Tribe of discrimination) and the step
towards termination that began withing ten days. (Compl. Ex. 41)
Other courts have found that extremely close temporal proximity between the
protected activity and the adverse employment action - a single day - would be sufficient
to meet a Complainant’s burden of proving a causal connection. (See Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (“[M]ere
temporal proximity between an employer's knowledge of protected activity and an
adverse employment action [can establish] sufficient evidence of causality to establish a
prima facie case . . . [if] the temporal proximity [is] ‘very close’”) (citation omitted);
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 36
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009) (“A plaintiff can establish a causal
connection that suggests retaliation by showing that protected activity was close in time to
the adverse action.”).)
ii. Wendy Roach’s Submission of Reports in Mr. Kanj’s Name
Evidences Animosity Perceived by Mrs. Roach From the Tribal
Council to Fencing Proposal
Another issue which was not addressed in the ALJ’s decision was the report to the
Tribal Council, dated June 28, 2005, submitted by Mrs. Roach in Mr. Kanj’s name.
(Compl. Ex. 31) Mrs. Roach stated that, on June 28, 2005, Mr. Kanj was not working for
the Tribe, as she had requested that he not be present on the reservation unless asked.
Mrs. Roach then admitted that she in fact submitted the report at issue. (Roach Depo.
123:4-129:7) Mrs. Roach’s decision to leave Mr. Kanj’s name on the report implies that
she understood the Tribal Council had feelings of animosity toward fencing off the creek
to prevent the contamination. If Mrs. Roach, the Tribal Government Manager at Viejas,
was concerned with her name even being associated with the contamination report, then
this was clearly a polarizing issue and a contributing factor to Mr. Kanj’s termination.
The ALJ did not address this evidence which revealed the true motivation behind Mr.
Kanj’s termination. Of course, had there been legitimate complaints about Mr. Kanj’s job
performance, there would have been documentation of these complaints, rather than them
first being raised in response to litigation.
E. The Reasons the Tribal Council Gave for Mr. Kanj’s Termination Are
Pretextual
If the employee demonstrates pretext, the ARB may infer that the protected activity
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 37
led to the termination. (See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993))
An employer’s shifting explanations for taking adverse action may be considered
evidence of pretext. (Speegle, supra at 11) Here, the record, and the absence of
documentary substantiation of the reasons articulated by the Tribe, shows that the litany
of the Tribe’s reasons for terminating Mr. Kanj were contrived for litigation. Based on
the conflicting testimony and lack of justification behind Mr. Kanj’s termination, it is
evident that Mr. Kanj was treated unfairly by the Tribe as a result of his reports about the
contamination of Viejas Creek. Indeed, none of the reasons claimed by the Tribe for the
termination were raised with Mr. Kanj before his June 7, 2005 letter from counsel (i.e.,
they were manufactured to avoid liability for the Tribe’s unlawful conduct.) In fact, even
the “investigation” done by Mrs. Roach leading to Mr. Kanj’s termination was not
supported by any documentation.
i. Wendy Roach’s Testimony is Not Reliable
The Court should inquire as to whether the employer gave an honest explanation of
its behavior. (Chapman v. Al Transp., 229 F. 3d 1012, 1030 (11th Cir. Ga. 2000))
a. Wendy Roach’s Claim of Ignorance Regarding Mr. Kanj’s
Report of Retaliation is Absurd.
On June 7, 2005, prior to the decision to terminate Mr. Kanj, Mr. Kanj’s counsel
sent a letter to Ms. Vitols, General Counsel for the Tribe. (Compl. Ex. 41) The letter
makes several claims regarding Mr. Kanj’s harassment, including that he was
discriminated against by the Tribe for providing reports regarding violations of the Clean
Water Act, and for reasons relating to his national origin. (Id.) As Mrs. Roach was Mr.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 38
Kanj’s supervisor, the reasonable expectation would be that Ms. Vitols, upon receiving a
letter with such serious allegations, would consult Mrs. Roach about its contents.
Nevertheless, Mrs. Roach claimed to have never seen the letter. (4RT964:11-965:14)
At trial, the ALJ also refused to believe that Mrs. Roach had never been shown
these documents. In response to Mrs. Roach’s claim, the ALJ stated:
Do you realize how incredulous that must be to have you tell me as the
person who fired Mr. Kanj that this letter was sent to your Legal Counsel
who you used to work for daily for, what, three years, and who was at the
meeting? From prior testimony, Mr. Barrett - - when you presented the
proposal to terminate Mr. Kanj, and nobody every [sic] showed you this
letter or mentioned it.
(4RT966:23-967:2)
The ALJ continued:
[T]hese are serious allegations, and I can’t - - I found it difficult to believe
that the Legal Counsel would have this letter and there would be no
discussion of it by two weeks later when they’re there in front of the Tribal
Council that you’re presenting a proposal to terminate this same
individual.”
(4RT967:24-968:4)
Finally, in the decision itself, the ALJ noted that Mrs. Roach’s assertion was
“incredulous.” (Dec. and Order p. 25) But this conclusion is irreconcilable with the
ALJ’s subsequent conclusion that Mrs. Roach’s proffered reasons for termination were
“very credible.” (Id.) The ALJ’s negative assessment of Mrs. Roach’s trial testimony is
an indictment of her credibility, yet the ALJ glosses over this fact in its conclusion of law.
b. Mrs. Roach Contradicts Herself Regarding Her
Knowledge of Mr. Kanj’s Vacation
The facts surrounding Mr. Kanj’s vacation carry with them a great deal of
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 39
significance in this case, because the manner in which the Tribe dealt with Mr. Kanj and
his vacation is demonstrative of an intent to harm him. Therefore, the fact that Mrs.
Roach’s testimony on this issue is also inconsistent further demonstrates her lack of
credibility and the Tribe’s true motives.
For example, Mrs. Roach paints a picture that Mr. Kanj’s return from his vacation
was uncertain, in what appears to be an effort to support her baseless claim that Mr. Kanj
lacked commitment to his work. She testified, “I - - it was very vague, very vague on
when he was going to come back.” (4RT908:2-3) However, when Mrs. Roach was asked
why she did not notify Mr. Kanj of his termination while he was still in Lebanon to give
him the option of remaining with his parents, Mrs. Roach changed her story to avoid
supporting the fact that the decision was punitive. She testified, “Well, the decision to
terminate was made on the 21 . He was coming back within - - he told me he was goingst
to be back within a couple of days.” (4RT960:11-13) But, once again the
Mrs. Roach then testified that she did not inform Mr. Kanj of his termination
immediately, which would have allowed him to stay with his parents in Lebanon for the
time he had originally requested, because she viewed it as being the “polite” thing to do.
Counsel asked:
“Why didn’t you - - why didn’t you write Jamal Kanj and let him know that
he had been terminated while he was on vacation so he could stay. You
knew that he wanted to stay. Right, with his folks?”
(4RT960:7-10)
Mrs. Roach responded: “ I - - I find it rude to do terminations by phone, by letter, by e-
mail. He told me he was returning. I had the opportunity to speak with him in person.”
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 40
(4RT960:13-16) Thus, Mrs. Roach claimed she allowed Mr. Kanj to return from his 10-
day visit to Lebanon, while aware that he had asked to be there for a month to care for his
parents, simply to show him the courtesy of firing him in person.
Finally, while it is undisputed that Mrs. Roach knew Mr. Kanj wished to take more
than ten days to visit his parents, she claimed she was unaware as to why he was visiting
his parents: “I - - he wanted to go see his parents. I mean I don’t know - - the why is want
[sic] to go on vacation to see his parents.” (4RT960:23-961:2) However, Mrs. Roach
conceded earlier that she had seen and discussed a May 16, 2005 letter from Mr. Kanj in
which he specifically states the purpose for his returning to Lebanon (4RT894:5-895:3):
“It is worth mentioning that my mother had a surgery about four weeks ago,
and my dad had a surgery in January of 2005. . . I have an obligation for my
job, and I have an obligation toward my parents. I will not do anything to
undermine any of these obligations. I need to have enough time to be close
to and help my both [sic] parents, as they get better from their surgeries.”
(Compl. Ex. 34)
In light of this evidence, and contrary to her sworn testimony, it is clear that Mrs.
Roach had knowledge of the purpose of Mr. Kanj’s visit, and also underscores the bad-
faith nature of allowing Mr. Kanj to return from Lebanon to demonstrate the proper
etiquette of firing him in person .5
c. Mrs. Roach’s Testimony Regarding Her Decision to
Terminate Mr. Kanj Is Also Inconsistent
The date of Mr. Kanj’s termination is another fact which Mrs. Roach could not
It is also worth noting that Mr. Kanj’s motives to go to Lebanon do not support5
Mrs. Roach’s conclusion that he lacked commitment to his job, only that he has priorities.ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 41
consistently address at trial. She claimed her concern in Mr. Kanj’s job performance
stemmed from a June 6, 2005 meeting that she had with Frank Rielo, Brian Frasier, John
Stilfox, and Steve Jones in which Big-D claimed that Mr. Kanj was slowing down the
gymnasium project by refusing to process change orders. (4RT903:18-25) According to
Mrs. Roach, she immediately took over the gymnasium project, despite the Tribe’s claim
that Mr. Kanj was the only one who could run it, i.e., the basis for denying his vacation
request, Mrs. Roach allegedly began to investigate Mr. Kanj’s job performance, yet there
is not a single corroborating document.
As a result of her “investigation,” Mrs. Roach claimed that she decided to
terminate Mr. Kanj on June 18, 2005, and that the Tribal Council was informed of the
decision on June 21, 2005. (4RT911:4-19) However, her actions and testimony reflect
that she had decided to terminate Mr. Kanj as early as June 13, 2005, when his e-mail was
blocked, further demonstrating that the decision to terminate Mr. Kanj was not rooted in
something which began on June 6, 2005, contrary to her testimony. (4RT950:17-951:2)
Specifically, by no later than June 13, 2005, Mrs. Roach had Mr. Kanj locked out
of his company email account. (4RT908:11-909:2) Mr. Kanj asked why he had been
locked out, and Mrs Roach informed him that it was because he was on vacation.
(Compl. Ex. 48) But Mrs. Roach testified she had never shut off anyone else’s e-mail due
to vacation in the past. (Depo. of Roach 133:2-9) At trial, Mrs. Roach testified that the
real reason for locking his e-mail account was because he had been taken off the
gymnasium project. But Mrs. Roach never informed Mr. Kanj of his removal from the
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 42
gymnasium project. Instead, she claimed she wanted to prevent him from working on
vacation because she wanted to prevent Mr. Kanj from making a wage claim.
(4RT908:11-909:2) Thus, Mrs. Roach claimed that by June 13, 2005 she knew Mr. Kanj
would be terminated, even though she identified June 18, 2005 as her decision at trial.
It is clear from this interaction that the Tribe was not being truthful with Mr. Kanj.
By her own admission, Mrs. Roach did not care that Mr. Kanj was on vacation, only that
he not interfere with the gymnasium. However, in addition to her misrepresentation to
Mr. Kanj, the fact that Mrs. Roach was anticipating a wage claim on June 13, 2005
suggests that she already had already made the decision to terminate him. While this is
noted to demonstrate Mrs. Roach’s lack of credibility, the expedience with which she
made her decision also reflects that Mrs. Roach did not have time to actually assess Mr.
Kanj’s performance, and simply manufactured reasons to terminate him. This conclusion
is further supported by Mr. Frasier who, a week after the June 6 special meeting, was told
by Mrs. Roach to copy her on all documents relating to the gym project because Jamal
Kanj would not be returning to work. (Fraiser Depo. at 72:04-18)
ii. The Tribe Cannot Support The Claim That There Were
Problems With Mr. Kanj’s Job Performance
The pretextual nature of the Tribe’s reasons for terminating Mr. Kanj is evident
not only in Mrs. Roach’s lack of credibility, but also in an analysis of the complaints
themselves. First, the sincerity of the Tribe’s complaints is undermined by the utter lack
of documentation regarding Mr. Kanj’s alleged poor work performance. In fact, Mrs.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 43
Roach herself admits that, prior to June 6, 2005, the Tribe did not have any complaints of
Mr. Kanj’s performance on the gymnasium project. (4RT950:17-951:2) Yet, in a matter
of a week, this supposed critical employee was terminated over the alleged complaints.
a. The June 6, 2005 Meeting Did Not Support That Mr. Kanj
Was Delaying Progress On The Gymnasium
On June 6, 2005, Mrs. Roach attended a meeting with Frank Rielo, Brian Frasier,
John Stilfox, and Steve Jones, to discuss the allegation that Mr. Kanj was slowing down
the gymnasium project by refusing to process change orders. (4RT903:18-25) Mrs. Roach
claims that, based on this meeting and the change orders addressed in Complainant’s
Exhibit 65 , she decided to instantly remove Mr. Kanj from the gymnasium project, the6
same project the Tribe had claimed, days before, that Mr. Kanj’s contributions were
indispensable in rejecting his request to visit his family. (4RT905:15-18)
The ALJ found that the alleged difficulties being created by Mr. Kanj were a
significant justification for the Tribe in firing Mr. Kanj. However, the ALJ failed to
review the actual change orders addressed in the June 6, 2005 meeting. The document,
prepared by Big D Construction, demonstrates that Mr. Kanj had nothing to do with
delaying the gymnasium. All projects were either proceeding or had been held up due to
rejected change orders on the part of the architect, not Mr. Kanj. (Compl. Ex. 65)
It is worth noting that the document prepared by Big-D for the June 6, 20056
meeting regarding change orders was prepared on June 2, 2005. This is the same day the
Tribe received a letter (via facsimile) from Mr. Kanj’s counsel informing the Tribe that
the severance agreement proposed to Mr. Kanj would not satisfy the claims he had against
them. (Compl. Ex. 177)ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 44
Of the 19 items listed on Exhibit 30 and addressed in the June 6, 2005 meeting, at
least seven of the items were not affecting the schedule at all because Big-D was
proceeding with the task, no delay could be identified by Big-D, or the delay had already
been suffered (i.e., delay due to weather). Another seven were the subject of discussion
not because Mr. Kanj had rejected change orders, but because the architect had rejected
the change orders. In one complaint, Big-D states:
“Contractor will address issues as soon as they are found. Owner can assist
contractor by holding architect accountable for costs and time delays in a
manner that does not create an adversarial relationship between all parties.
Architect is often times providing answers that are not the best solution
trying to cover their own interests not the owners interests.”
(Id.)
The documents are consistent with Mr. Jones’s testimony that the architect and the
general contractor who were combative with each other, not Mr. Kanj. (2RT458:15-23)
Furthermore, Brian Frasier affirmed that the gymnasium was not suffering from harmful
delay, as was allegedly represented to Mrs. Roach at the meeting. In his Executive
Summary for April of 2005, Mr. Jones notes that the gymnasium project was progressing
and was only 18 working days behind schedule, mostly due to inclement weather.
(Frasier Depo. at 90:9-22; Ex. 6: 4313-14) In light of the fact that this project was several
years in the making (4RT898:19-899:7), it is difficult to conceive of how the Tribe could
sincerely argue to the ALJ that Mr. Kanj was responsible for a significant delay,
especially when that delay was attributed to weather.
Indeed, Mr. Frasier again affirmed that the “Gymnasium is progressing at a fast
pace” in his May 2005 Executive Summary. (Frasier Depo. Ex. 6: 4315) There is no
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 45
mention of any delay in any contemporaneous documents that was caused by Mr. Kanj.
Despite the reports demonstrating that the gymnasium project was on track, and the
spreadsheet identifying issues at the June 6, 2005 meeting which largely identify
problems with the architect rather than Mr. Kanj, Mrs. Roach instantly removed Mr. Kanj
from the project after the meeting. Moreover, although Mr. Kanj had yet to leave for
Lebanon, Mrs. Roach neither consulted him before deciding to remove him from the
project nor notified him when she did. (4RT905:15-21)
The only truly time-sensitive priority to the Tribe was not even addressed at the
June 6, 2005 meeting. According to the Tribe, the priority on the gymnasium was that the
surrounding grass be ready for the 4th of July celebration. (3RT712:13-713:16)
However, the parts that were to be used for that celebration did not require Mr.
Kanj’s supervision to be completed. (3RT711:25-712:12; 3RT754:25) Big-D had already
informed Mr. Kanj that it would proceed to hydroseed the area unless it heard specific
directions to lay sod. (Frasier Depo. Ex. 22) Therefore, his presence was entirely
unnecessary for the only time sensitive issue: the grass. Furthermore, regarding the
asphalt parking lot, it was neither time-sensitive nor was his presence necessary when a
consulting engineer who designed the project would have been available at all times.
An examination of the reasons cited as bases for action against Mr. Kanj regarding
the gymnasium are quickly exposed as being minor, if not fabricated. (Compl. Ex. 40)
The ALJ never addressed the inconsistency within the documented reports of delays or
why a long-term and high-level employee like Mr. Kanj would be terminated in such an
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 46
odd manner against the testimony of the Tribe.
b. Senior Landscaping Program
At trial, Mrs. Roach claimed that another project Mr. Kanj was needed for was the
Senior Landscaping Program, a program where the Public Works employees worked with
seniors to landscape the area around their homes. (4RT892:14-25) With respect to his
vacation, Mr. Kanj reasonably believed that he did not need to be present for the
landscaping project because he had a manager, Don McDermott, handling it. (3RT758:1-
19) Amazingly, despite Mrs. Roach’s belief that Mr. Kanj was giving Viejas a “bad
reputation” because he was difficult to work with, Mrs. Roach said Mr. Kanj’s presence
was necessary on this project because he was able to work with the seniors while others
were “distrusted.” (4RT906:12-25) These positions are incompatible.
The testimony further demonstrates that the Tribe simply pretextual arguments to
justify its treatment of Mr. Kanj. To be clear, Mrs. Roach claimed that Mr. Kanj could
not visit his parents to help them recover from surgery because “some of the seniors can
be a little cantankerous,” and, therefore, “someone higher up was necessary to work out a
solution to make that program work.” (4RT907:2-11) Of course, it is absurd for the Tribe
to suggest that Mr. Kanj, a licensed professional engineer, and the Deputy Tribal
Government Manager, Director of the Public Works Department needed to be there to
oversee the program to deal with some “cantankerous” seniors. Furthermore, the Tribe
makes no effort to reconcile how it can hold that he was the only one who had the people
skills to keep things running smoothly on one project but was giving the Tribe a “bad
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 47
reputation” because of his behavior on another.
Mr. Kanj gave the example of a shovel being left behind as the type of complaint
raised by seniors in the course of the program. (3RT757:17-23) The Senior Grdening
program was never shown to be off track; it was simply intended to help seniors with
their gardening. In fact, there was no set time table for the program. The Tribal member
in charge of the program, Mabel Velasquez, never made any suggestion to Mrs. Roach
that Mr. Kanj be fired. Nor was there documented evidence introduced that Ms.
Velasquez was displeased with his performance. (Depo. of Roach 68:24-69:22)
c. Water Reclamation Project
Mrs. Roach also listed the Water Reclamation Project as a reason Mr. Kanj’s trip
to Lebanon came at a bad time. (4RT890:17-891:15) However, the record does not
reflect any communication, pre-litigation, regarding the water reclamation project, or that
it was off-track. (3RT691:21-692:1) In fact, on April 27, 2005, Mrs. Roach submitted a
report drafted by Mr. Kanj to update the Tribal Council on the status of the reclamation
project which suggested the opposite. (Compl. Exhibit 55 and 56) There are neither
documents nor any other evidence which suggest that this report was considered deficient
or that there was a pressing need for Mr. Kanj’s presence that would be particularly
necessary during the 30 days he requested off.
iii. Mr. Kanj was Committed to the Tribe and his Job
a. Change Orders
In addition to the above projects, the Tribe also claims that Mr. Kanj’s poor
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 48
performance in supervising the gymnasium project contributed to the ultimate decision to
terminate his employment. (4RT892:6-10) Specifically, there was an issue regarding his
holding up the approval of work orders. However, Mr. Kanj was told by Tribal Council
member Alan Barrett that he should scrutinize change orders carefully, since they are a
means by which construction companies would drive up their costs. And, the Tribe
previously had problems with the contractor at issue. (2RT388:19-390:20) The Tribe did
not want Mr. Kanj to rubber-stamp the change orders simply to keep construction
moving. (2RT384:6-20) Therefore, the Tribe asserts an implausible factual argument:
Mr. Kanj had to scrutinize change orders and hold the bidder to their bid, ut because Mr.
Kanj did too good of a job he was terminated.
Mr. Frasier’s supports the necessity of scrutiny on the part of an owner’s
representative. He testified in his deposition that not scrutinizing change orders would
mean an owner’s representatitive person was not doing his job. (Frasier Depo. at
89:14:22) In compliance with this view, Mr. Kanj scrutinized change orders in order to
keep the construction company from running up costs. Nevertheless, while the Tribe and
Big-D paint a picture that Mr. Kanj simply rejected all change orders, the reality is that he
had already approved hundreds of thousands of dollars worth of change orders requested
by Big-D. (Frasier Depo. at 95:6:20)
Mr. Kanj acted with the best interests of the Tribe in mind, and to save the Tribe
money as he was directed. Prior to this litigation, he was never notified that his scrutiny
of the change orders was causing a delay, nor told that the Tribe was unhappy with his
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 49
work. (2RT536:13-2:537:7) Steve Jones explained that there was a delay in the project
due to weather. (2RT427:24-428:3) However, at trial, the Tribe submitted no documents
substantiating its alleged claims that it was Mr. Kanj who was at fault for the delays.
b. Request to Visit Parents in Lebanon
It would be a dangerous precedent to conclude that a person requesting time off to
visit his parents is evidence of a lack of commitment to an existing job. Mr. Kanj framed
the issue well when he wrote to the Tribal Council, “I have an obligation for my job, and I
have an obligation toward my parents. I will not do anything to undermine any of these
obligations.” (Compl. Ex. 34) However, Mrs. Roach claimed it was inappropriate to
request to leave in the middle of the gymnasium project, even though she ultimately
removed him from the project before he even departed to Lebanon.
At trial, Mrs. Roach claims that she verbally communicated to Mr. Kanj that it was
not a good time for him to leave for a month. (4RT892:6-893:10) However, Mrs. Roach
still took Mr. Kanj’s vacation request to the Tribal Council. (4RT893:11-13)
Furthermore, upon rejection by the Tribe, Mrs. Roach offered to try to negotiate a
three week vacation for Mr. Kanj. (4RT894:9-19) In light of these facts, it should be
clear that there was actually nothing wrong with such a request by Mr. Kanj. Had Mrs.7
Roach truly believed that his absence could not be accommodated in the middle of the
gymnasium project, she would not have offered to return to the Tribal Council in an effort
Additionally, Mr. Kanj’s vacation in 2002 occurred at a time when even more7
projects were pending, and there was never an issue with him taking such a lengthy
vacation at that time. (1RT160:5-8)ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 50
to procure a three-week vacation for him.
Torn by his obligations, and in response to this discrimination, Mr. Kanj suggested
“splitting” with the Tribe. (3RT731:7-743:19) If his presence were actually necessary,
then it was reasonable for Mr. Kanj to believe that “splitting” would be a negotiation
tactic to help get the time he needed to see his parents. However, if his presence was not
as necessary as the Tribe suggested, then Mr. Kanj was already suffering discrimination
and cannot be faulted for contemplating leaving.
The Tribe has attempted to flip their discrimination of Mr. Kanj by saying that he
lacked commitment by his suggesting that he and the Tribe should part ways.
(4RT895:20-25) However, the fact that the Tribe served Mr. Kanj with a proposed
severance agreement the morning after he first mentioned splitting shows that the Tribe
was simply waiting for the an opportunity to mask its intention to take adverse action
against him. (3RT731:22-734:7)
To adopt the reasoning of the Tribe and the ALJ, a whistle blower would lose
protection by attempting to mitigate damages when he sought new employment in the
face of harassment and discrimination. When an employee suffering discrimination from
an employer intimates that he must seek other employment as a result of the
discrimination, he cannot be faulted for “lack of commitment.” Instead, this is precisely
the situation in which such an employee must be protected. Otherwise, the law would
encourage silence and inaction on the part of the discriminated employee and obviate the
intention of the whistleblower statutes.
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 51
Because the ALJ did not consider all the material evidence, its conclusion that the
Tribe’s alleged reasons for terminating Mr. Kanj were adequate must be reviewed. More
importantly, even with the ALJ having found that these reasons were not pretextual, this
does not negate the fact that Mr. Kanj’s whistle blowing activities also contributed to his
termination, a fact which the ALJ failed to address within its analysis.
F. The ALJ Misapplied the Law Concerning the Standard of Proof for
Complainant to Shift the Burden to the Tribe to Disprove the Negative
Inference of Unlawful Motivation for the Adverse Employment Action
If an employee proves by a preponderance of the evidence that a retaliatory motive
contributed, at least in part, to the employer’s decision, i.e., that “dual motives” existed,
then the employer must prove by a preponderance of the evidence that it would have
taken the action for the legitimate reasons alone. (Clean Harbors Envtl. Servs. v.
Herman, 146 F.3d 12, 21-22 (1998))
The ALJ could not have arrived at its decision that Viejas’ reasons for firing Mr.
Kanj was due to his poor management and supervision of the gymnasium project, or his
apparent lack of commitment, based on a preponderance of the evidence, because the ALJ
did not consider the relevant material facts and testimony regarding Mr. Kanj’s
termination. The ALJ concluded that the Tribe’s reasons were sufficiently grounded in
evidence and, thus, lawful reasons for termination. It reached this conclusion despite the
fact that the showing that the Tribe terminated Mr. Kanj without cause under his contract
and then later decided to cite numerous “causes” for termination. (Compl. Ex. 35 and 9)
Additionally, the ALJ misapplied the burden that Mr. Kanj had in proving the
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 52
Tribe’s reasons for termination were pretextual. Because Mr. Kanj proved by a
preponderance of the evidence that “dual motives” for his termination existed, the legal
burden shifted to the Tribe to prove that they would have taken that action for the
legitimate reasons alone. Furthermore, Mr. Kanj was fired shortly after the Tribe
received a letter dated June 7, 2005, from Mr. Kanj’s attorney. The letter stated that Mr.
Kanj believed he was being discriminated against and treated adversely due to his
national origin, age, and engaging in protected activity under the CWA. (Compl. Ex. 41)
The ALJ also improperly analyzed the temporal proximity between Mr. Kanj’s
engaging in protected activity and his termination when it concluded that the time lag
between the formation of retaliatory action and the imposition of adverse action went
against a finding that the element of contribution had been satisfied. (Dec. and Order at
41) Contrary to its conclusion, there was no time lag between Mr. Kanj’s final report of
fecal coliform contamination and his termination. In fact, it was given to Mrs. Roach to
be submitted on June 28, 2005, immediately prior to his termination. Furthermore, the
letter from Mr. Kanj’s counsel calling attention to his rights as a whistleblower was
received by the Tribe within two weeks of the decision to terminate Mr. Kanj. Therefore,
there is a close temporal proximity between the reports and adverse action. Additionally,
while temporal proximity is a consideration, it is not dispositive. Temporal proximity is
just one factor for the trier of fact to weigh in deciding the ultimate question of whether a
complainant has proved by a preponderance of the evidence that retaliation was a
contributing factor in the adverse action. (Thompson v. Houston Lighting & Power Co.,
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 53
ARB No. 98-101, ALJ No. 96-ERA-34, slip op. at 6 (ARB March 30, 2001))
Furthermore, the Court ignored the issue that the Tribe’s failure to provide
performance reviews was itself a kind of adverse employment action which began in
conjunction with Mr. Kanj’s reports.
The complainant’s ultimate burden is not to prove that there was temporal
proximity between protected activity and adverse action. Rather, a complainant must
prove that the protected activity was a contributing factor in the action. (Id.) The ALJ did
not consider the temporal proximity of Mr. Kanj’s initial reports on the contamination of
the Viejas Creek and other adverse action Mr. Kanj described, including discrimination,
lack of performance reviews and salary increases, and a hostile work environment. The
ALJ failed to consider that Mr. Kanj was not only complaining about his termination as
the sole adverse action the Tribe took. The termination of his employment was the
culmination of years of disparate treatment once his contamination reporting began.
Circumstantial evidence may include temporal proximity, indications of pretext,
inconsistent application of an employer's policies, shifting explanations for an employer's
actions, and more. (Sylvester v. Parexel Int'l. LLC, ARB No. 07-123, ALJ Nos.
2007-SOX-039, -042, slip op. at 27 (ARB May 25, 2011).) As Judge Posner stated,
discrimination can be proved “by assembling a number of pieces of evidence none
meaningful in itself, consistent with . . . statistical theory that a number of observations
each of which supports a proposition only weakly can, when taken as a whole, provide
strong support if all point in the same direction.” (Sylvester v. SOS Children's Vills. Ill.,
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 54
Inc., 453 F.3d 900, 903 (7th Cir. 2006).) It was not the intention of Congress that a
complainant obtain a confession as to motivation of the respondent to obtain relief.
VII. JAMAL KANJ SUFFERED HARM AS A RESULT OF THE ADVERSE
ACTION
Complainant Kanj suffered financially, and emotionally, from the Tribe’s
mistreatment. The matter should be remanded for consideration of an award of emotional
distress damages. (See, e.g., Ferguson v. New Prime, Inc., ARB No. 10-075, ALJ No.
2009-STA-47 (ARB Aug. 31, 2011).) To the extent that the Tribe is not ordered to
reinstate Mr. Kanj and pay back-pay, Mr. Kanj should be awarded damages. According
to the testimony and report of Mr. Rose, over the course of Mr. Kanj’s work life he will
have lost $2,550,000 in wages due to the termination. (1RT174:4-22) Mr. Rose also
calculated Mr. Kanj losing $3,000 per month in future dollars for a period of 15 years, for
the anticipated loss of social security benefits. Finally, Mr. Kanj is owed back pay for the
period of January 2003 to September 2004 in the amount of $69,198. In total, Mr. Kanj
suffered damages in the amount of $3,191,452. (Compl. Ex. 174)
VII. CONCLUSION
For the foregoing reasons, Complainant Jamal Kanj respectfully requests that the
Board review the material facts and legal burden at issue, and reverse the Administrative
Law Judge’s ruling dismissing his complaint for retaliation by Respondent Viejas Band of
Kumeyaay Indians. Mr. Kanj further requests that the Board order, as remedies for the
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 55
Tribe’s unlawful conduct, reinstatement, emotional distress, back pay, damages, attorneys
fees, and such other relief as is determined to be proper.
Dated: The McMillan Law Firm, APC
Scott A. McMillan
Attorneys for Complainant
Jamal Kanj
ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 56