Download pdf - Opening Brief on Appeal in Kanj v. Viejas Band of Kumeyaay Indians

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.


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


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


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)


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.


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.


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;


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-


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)


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


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


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)


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


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


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


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)


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


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


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


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-


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


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


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.)


(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.


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.


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


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


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


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


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


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


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


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.


(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.


(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);


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


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.


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


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.”


(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


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.


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


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


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


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


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


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.


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


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 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.,


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


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
