§ 6.9.4.3.1 BURDEN OF PROOF UNDER TYPICAL FEDERAL WHISTLEBLOWER STATUTES.

• Jurisdiction: Arizona

§ 6.9.4.3.1 Burden of Proof Under Typical Federal Whistleblower Statutes. A complaint must prove four elements to establish a prima facie case of retaliatory adverse employment activity: (1) the employee engaged in protected activity under the given statute; (2) the employer had knowledge of the activity; (3) the employer took some sort of adverse employment action against the employee; and (4) a causal connection exists between the protected activity and the adverse employment action.¹⁰³ The employer charged with the illegal retaliatory action may rebut the prima facie showing with evidence that the adverse action was motivated by legitimate nondiscriminatory reasons.¹⁰⁴

If the employer is able to articulate a legitimate reason for the adverse employment action, the burden then shifts to the employee to prove, by a preponderance of evidence,¹⁰⁵ that the proffered reason is pretextual by establishing either that an unlawful reason more likely motivated the employer, or that the employer's proffered reason is not credible and the employer in fact discriminated against the employee.¹⁰⁶ If the employer is shown to have had both legitimate and retaliatory motives for the adverse action, the employer must prove, by clear and convincing evidence,¹⁰⁷ that the adverse action would have occurred even absent the protected activity.¹⁰⁸

The burden of proof allocation under the provision in Sarbanes-Oxley authorizing civil claims to be brought on...