UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD In the Matter of: JAMAL KANJ, COMPLAINANTS OPENING BRIEF

Complainant v. VIEJAS BAND OF KUMEYAAY INDIANS, Respondent. ALJ Hon. Russell D. Pulver ARB CASE NO. 12-002 ALJ CASE NO. 2006-WPC-001

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. II. III. STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. B. Material Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary of Trial Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii Jamal Kanj. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Steven Jones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Don McDermott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Bobby Barrett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Wendy Roach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Virginia Christman via Deposition Testimony.. . . . . . . . . . . . . . . . 17 Tom Hyde via Deposition Testimony.. . . . . . . . . . . . . . . . . . . . . . . 17 Anthony Pico via Deposition Testimony. . . . . . . . . . . . . . . . . . . . . 18 Brian Frasier via Deposition Testimony.. . . . . . . . . . . . . . . . . . . . . 19 Penelope Culbreth-Graft via Deposition Testimony. . . . . . . . . . . . 21 Phillip Kaushall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Edward Rose.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

IV. V. VI.

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. B. Mr. Kanj Engaged in Protected Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 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. ii. iii. Discrimination that Created a Hostile Work Environment.. . . . . . . 30 The Tribes Refusal of Mr. Kanjs Vacation Request. . . . . . . . . . . 31 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. Kanjs Reports Received as Unwelcome Requests for Changing Tribal Traditions and Culture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ii. Wendy Roachs Submission of Reports in Mr. Kanjs Name Shows The Animosity by the Tribal Council to Fencing Proposal. . . . . . . 37

E.

The Reasons the Tribal Council Gave for Mr. Kanjs Termination are Pretextual. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 i. ii. Wendy Roachs Testimony is Not Reliable. . . . . . . . . . . . . . . . . . . 38 The Tribe Cannot Support The Claim That There Were Problems With Mr. Kanjs 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 Authority Bowen 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. Marys 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 Authority 29 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 Tribes 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 Tribes 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. Kanjs job performance. Relying on oral testimony at trial, the Tribe offered pretextual explanations for Mr. Kanjs 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 Tribes rebellious urge to exercise autonomy over its own land, and its own animals, took precedence over the environmental statutes passed by Congress. As set forth within, the evidence is one-sided that Mr. Kanj was the victim of intentional discrimination resulting from his inflexible attitude towards water safety. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 2

Moreover, in light of the temporal events and resulting actions, and the Tribes own lack of documentary evidence substantiating its decision, the Tribes 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 ALJs recommended order of dismissal of Mr. Kanjs complaint. Furthermore, although the ALJ began by identifying the proper standard for Mr. Kanjs claim in its order, its conclusion was based on an inverted application of the same standard. In determining whether Mr. Kanjs 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. Kanjs protected activity contributed to his termination. Instead, the ALJ focused on whether anything else could have contributed to Mr. Kanjs termination. (Dec. and Order 48) The presence of an alternate valid motivation for terminating an individual does not disprove evidence that the protected activity was a contributing factor. This misapplication of the legal standard is grounds for the decision to be overturned through this appeal. II. PROCEDURAL HISTORY On August 5, 2005, within two weeks of his July 24, 2005 termination, Mr. Kanj ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 3

filed his complaint. On November 14, 2005, the Viejas Tribe filed a motion for summary judgment on the grounds that the tribal sovereign immunity precluded Mr. Kanj from applying for whistle blower protection under the Clean Water Act (CWA). Mr. Kanj opposed the motion on the grounds that tribal sovereign immunity is explicitly abrogated by the CWA. On December 12, 2005, the ALJ agreed that the CWA waives immunity. The Tribe then sought interlocutory appeal of the denial of its motion for summary judgment. On March 9, 2006, the ALJ certified the sovereign immunity issue to the ARB, and stayed the proceeding pending the ARB decision. On April 27, 2007, the ARB affirmed the denial of summary judgment. (Kanj v. Viejas, ARB No. 06-074, ALJ 06WPC-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 Complainants claims were time-barred. On March 17, 2008, the ALJ granted the Tribes 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 Tribes statute of limitations defense. On February 11, 2009, Mr. Kanj filed a Motion for Reconsideration, which was denied by the ALJ. Mr. Kanj filed a Petition for Review with the ARB, which was granted on December 1, 2010. The case was thus remanded to the ALJ for a decision on the merits. Both parties filed additional briefs ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 4

regarding the relevant issues. On September 9, 2011, the ALJ issued a second Decision and Order Dismissing the Complaint. (Decision and Order (2011), Dec. and Order.) On September 22, 2011, Mr. Kanj filed a Petition for Review of the findings of the Order of the ALJ, which was granted by the ARB on October 11, 2011. On October 28, 2011, the ARB granted Complainants 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. Kanjs 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 Reservations Creek. (1RT267:15-270:16; 2RT350:11-355:17) He determined the contamination originated within the Reservation, and pinpointed the problem to the Tribes free-range cattle that had been defecating in the creek. (Id.) Mr. Kanj was reasonably concerned about the contamination because Viejas Creek runs into a reservoir that supplies drinking water to San Diego County. (1RT245:6-16) Mr. Kanj was also alarmed because he saw children playing in the contaminated creek. (3RT618:13-25) ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 5

Soon after his initial report, Mr. Kanj began to suffer abuse from the Tribal Council and Tribal Elder Tom Hyde, whose own cattle were causing the contamination. (1RT267:15-270:16; 2RT350:11-355:17) Following Mr. Kanjs 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 Tribes 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. Kanjs 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. Roachs subjective fear of the Tribes 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 at the end of Mr. Kanjs Opening Brief. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 6

being responsible for managing up to as many as 50 to 70 people in her role as Tribal Manager. (Depo. of Roach 148:15-23; 4RT929:2-13) B. Summary of Trial Testimony i. Jamal Kanj

Mr. Kanj testified that when he was growing up in a Palestinian refuge camp in Lebanon, his neighbor died from unsanitary water conditions, and that experience impacted the way Mr. Kanj feels about the importance of clean drinking water. (1RT162:4-164:4) This was further emphasized when, years later, Mr. Kanjs son got sick from washing fruit with water which had not been sanitized. (1RT164:24-165:15) Mr. Kanj was 18 years old when he came to the United States (1RT219:15-23), and he decided to study civil engineering because he felt it was an occupation which allowed him to help the people around him. (1RT220:4-12) He received an Associate of Arts degree in engineering while studying in Houston, Texas. (1RT229:21-25) From there, he went on to study engineering at the University of Oklahoma, and he completed his degree in San Diego at the United States International University. (1RT229:21-230:4) Upon earning his Bachelor of Science in civil engineering, Mr. Kanj worked for the City of San Diego for about 15 years in the water collection division, and he implemented a plan to keep polluted runoff water from entering the ocean. (1RT220:25-222:25) Mr. Kanj became a professional engineer licensed with the State of California in 1993. While working for the City of San Diego, Mr. Kanj met Ms. Culbreth-Graft, who told him about the job of Director of Public works with Viejas. (1RT223:11-224:4) Ms. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 7

Culbreth-Graft noted that the Director of Public Works would be in charge of many things, including construction pertaining to water, sewer, roads and buildings. (1RT235:17-25) Mr. Kanj was not told that there were any wastewater problems that he would be handling or any involvement with the Viejas Creek. (1RT236:12-24) The water from Viejas Creek eventually discharges into Loveland Reservoir, one of the major reservoirs used to provide drinking water for San Diego County. (1RT245:6-16) In August of 2000, Mr. Kanj was hired by the Tribe. (Compl. Ex. 9) Mr. Kanj negotiated his initial contract with Viejas as the Director of Public works with Ms. Culbreth-Graft. (1RT254:10-255:23) The parties agreed that Mr. Kanj would receive an annual salary of $98,000, a 20% bonus, and that he was to receive annual performance evaluations and future salary increases based on those evaluations. (1RT261:19-262:18) But Mr. Kanj only received two performance evaluations, one in 2001 and another in 2002, and in both he was deemed Outstanding. (1RT262:3-5; Compl. Ex. 10 and 14) Both of these evaluations preceded his reporting that the Viejas Creek was polluted as a result of activity on Tribal grounds. Mr. Kanj made his first presentation and report on the contamination in the Viejas Creek to the Tribal Council in March of 2003. After that report, he received no further performance evaluations, despite having asked for one because he knew other directors were receiving performance evaluations and salary increases. (1RT262:11-265:3) Mr. Kanj proposed fencing off the creek to prevent the cattle from contaminating the water, an idea to which the Tribal Council was initially receptive. (1RT269:1-16; ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 8

Compl. Ex. 26) However, Council members wanted Mr. Kanj to clear the plan with Tribal Elder Tom Hyde. (1RT269:12-20) Mr. Kanj attended a meeting at Mr. Hydes 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 Tribes 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. (2RT37:18ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 9

380:4) At the time of his vacation request, there were certain construction projects underway, including a gymnasium, a water reclamation project, and senior landscaping that Mr. Kanj was supervising. Mr. Kanj believed the projects were at stages that did not require his immediate supervision. When he requested the 30-day leave, the Tribe told him it would interfere with the progress of and he was not told (when he requested a the vacation) that it would interfere with necessary work. (3RT691:12-693:10) Although the Tribe denied Mr. Kanjs request for a 30-day leave, he was allowed a 10-day vacation. Mr. Kanjs vacation request was denied, but a 10-day vacation was permitted2 . (3RT393:11-13) On May 26, 2005, the Tribe tendered him with a proposed 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. (3RT796:14797:21) 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, when his request for vacation was denied, he used the idea of splitting as a negotiation tactic. He did not use the word severance and did not expect that the Tribe would serve him with a severance package after Tribal members claimed his position was so critical. (3RT731:22-732:20) ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 10

offers. (3RT779:15-780:8) However, the Tribe had no knowledge of these actions prior to his termination, which makes the information irrelevant to the Tribes 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. Kanjs termination. The pretextual reasons related to alleged construction project problems, including change order delays, and Mr. Kanjs alleged lack of commitment. But, there were no documents offered into evidence supporting these claims. Mr. Kanj testified that change orders do not hold up construction and can be settled at the end of construction. (2RT530:2-11) Mr. Kanj stated that the bi-weekly construction progress meetings were to address issues with change orders and Requests for Information (RFI), and that he did not believe his position on change orders or RFIs caused any delay in the project. (2RT537:2-24) Tellingly, the Tribe was never informed Mr. Kanj that his actions were delaying the project, a claim raised by the Tribe at trial. (2RT541:11-13) ii. Steven Jones

The Tribe employed Steven Jones for about 10 years. (2RT394:6-7) In early 2005, the Tribe asked Mr. Jones to begin attending owner-contractor meetings for the gymnasium project, supposedly because the Tribe had concerns about how the project was being run. (2RT397:1-16) Mr. Jones, Brian Frasier, Mr. Kanj, the project architect, and various staff members from the Tribe attended these meetings where the individuals ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 11

discussed issues surrounding Potential Change Orders. (2RT398:7-11; 2RT419:20-23) Mr. Jones testified that on June 6, 2005, he attended a regularly scheduled a meeting with Mr. Kanj, Mr. Frasier, a representative of the architect, and Ben Foster to discuss the projects 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 owners 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. (2RT428:12431:12) Mr. Jones also testified that determining when a PCO could be addressed ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 12

depended on provisions existing in the contract for the project, and he had not reviewed the contract for the construction of the gymnasium. (2RT440:20-441:15 and 2RT439:15:20) The Tribe did not identify any specific change orders that Mr. Kanj failed to resolve which caused any delay. iii. Don McDermott

Mr. McDermott worked for Viejas from 1991-2007. (2RT503:16) He is certified in California by the Department of Health Services in Grade 1 Water Treatment Operation and Grade 2 Water Distribution. (2RT503:21-504:2) Mr. McDermott was responsible for signing water quality reports for the Tribe, the State and the EPA. (2RT505:1-6) He testified that it was his responsibility to report the fecal coliform in the water to the Tribe. (2RT505:19-24) Mr. McDermott also testified that Mr. Hyde had significant influence on the Tribe and its actions. (2RT514:24-25) Mr. Hyde asked Mr. Kanj to leave, which he hesitated to do. (2RT521:1-20) At that meeting, Mr. Hyde said that the cattle in the stream were not hurting anything. Mr. Hyde tied his rejection of the fencing idea to his conviction that the animals belonged to the Tribe, and he wanted to maintain their presence on the reservation. (2RT514:7-12) Mr. Hyde also rejected the idea that the animals were actually hurting the environment. (2RT514:7-12) In Mr. Hydes view, the creek was the water source for the cattle, and he had expressed that the cattle were his life, and leaving them undisturbed on the reservation went hand in hand with maintaining the traditions and culture of the Tribe. (2RT523:13-20 and 2RT513:20-514:3) ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 13

About a year after Mr. Kanjs 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. Kanjs 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. Kanjs 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. Kanjs 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 Tribes 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. Kanjs employment, he saw the children playing in the creek which he knew to be contaminated. v. Wendy Roach

Mrs. Roach is the Tribal Government Manager at Viejas. (4RT885:3) She testified ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 14

she became concerned about Mr. Kanjs 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. Kanjs 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. Kanjs 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. Kanjs 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. Kanjs 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. Kanjs termination with the Tribal Council. (4RT913:1-24) Although Mrs. Roach testified that Mr. Kanjs apparent lack of dedication ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 15

was her primary reason for terminating him, her report to the Tribal Council did not make any mention of this reason. Instead she referred to problems with the contract with BigD, which Mr. Kanj had not created, in addition to problems with the change orders, and the bad relationship between Mr. Kanj and Big-D. (4RT913:120) 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. Kanjs 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. Kanjs 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. Kanjs hiring, but ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 16

she was not a member at the time of Mr. Kanjs 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. Christmans dream, and she, Mr. Kanj, and other Tribal Council members made it a reality. (Id. at 45:12) She stated that Mr. Kanj had an interest in the gymnasium, he cared about it, and he enjoyed seeing it being built. (Id. at 48:3-9) She was surprised when she heard that Mr. Kanj was no longer working for Viejas. (Id. at 54:19) She has never seen anyone on the Tribal Council express animosity toward Mr. Kanj, nor ask Mr. Kanj to leave a meeting. (Id. at 73:10-74:20) She did not believe Tom Hyde had any influence over the Tribal Council and their decisions. (Id. at 75:7-76:14) vii. Tom Hyde via Deposition Testimony

Mr. Hyde is a Tribal Elder of the Viejas Band who has lived on the Viejas reservation since 1934, when he moved there at the age of seven. (Hyde Depo. at 6:3-7:9) He owns cattle that graze on the reservation. (Id. at 21:15-22:1) Mr. Hyde testified that he was civil toward Mr. Kanj, but he admitted did ask him to leave his house on one occasion because he felt Mr. Kanj was being offensive. (Id. at 39:11-40:4). Mr. Hyde was not concerned with whether his cattle were polluting the creek, because he felt other animals polluted it as well. (Id. at 52:1-16) Mr. Hyde denied recommending that the Tribe fire Mr. Kanj. (Id. at 64:2-4) He did not know what Wendy Roach did for the Tribal Government. (Id. at 75:8-17) ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 17

viii.

Anthony Pico via Deposition Testimony

Mr. Pico was the Chairman of the Viejas Tribe from 1995 to January 2007. (Pico Depo. at 7:13-19) He denied knowing why Mr. Kanj was terminated, and claimed to find out after the fact. (Id. at 15:15-20) Diane Vitols had no part in the decision-making process of the tribal government. (Id. at 16:4-16) Mr. Pico denied discussing fencing the cattle with Mr. Hyde, or Mr. Hydes 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. Hydes house with Mr. Kanj regarding the cattle in the creek, and he remembers hearing that the meeting was not productive. (Id. at 47:12-22) Mr. Pico admitted Mr. Kanj asked him to help communicate with Mr. Hyde, but Mr. Pico did not recall speaking to Mr. Hyde about it. (Id. at 51:15-52:20) Mr. Pico did not recall reading a June 8, 2005 letter from Viejas stating that Viejas ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 18

was at a critical point on several projects, but he understood that to be the situation. (Id. at 78:8-23) Mr. Pico heard Mrs. Roach indicate that she was unhappy with Mr. Kanj, but he could not recall when that communication occurred. (Id. at 86:20-87:3) Mr. Pico did not remember Mr. Hyde telling the Council to get rid of Mr. Kanj. (Id. at 95:1-4) Mr. Pico remembered that Mr. Kanj was asked not to attend the General Council meeting right after the meeting at Mr. Hydes 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 12:67) Mr. Frasier was Big Ds 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 30:2231:14) Mr. Blackman, the architect, told Mr. Frasier that the gymnasium project had been ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 19

designed several years before the start of construction, and that some modifications were done to lessen the cost. (Id. at 34:10-35:16) Mr. Frasier felt that the competing interests of the contractor, the architect, and Mr. Kanj (as the Viejas representative), were causing tension and delays in the project. (Id. at 37:12-38:5) Mr. Frasier felt that the architect and Mr. Kanj were not reviewing change orders in a timely manner or rejecting them outright. He continued with construction but discussed that Big D would need to be paid eventually for the changes. (Id. at 41:1742:18) 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. Frasiers 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. Kanjs job, as a steward of the Tribes 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. Frasiers 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 4th picnic, but not the entire project. (Id. at 268:20-269:8) x. Penelope Culbreth-Graft via Deposition Testimony COMPLAINANT OPENING BRIEF ON APPEAL 20

ARB CASE NO. 12-002

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. Kanjs 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. Kanjs 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. Kanjs emotional state, and the effects of his workARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 21

related stress suffered at the Tribe, in order to help determine damages. (2RT292:6-11) Dr. Kaushall performed both informal and formal investigations of Mr. Kanj, including an MMPI test consisting of 567 self-descriptive questions. (2RT292:20-293:17) He also reviewed Mr. Kanjs medical records, which included the psychotropic medications Mr. Kanj had been taking. (2RT295:2-12) Dr. Kaushall concluded from his interviews, tests, and Mr. Kanjs 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. Kanjs 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. Kanjs 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. (2RT298:2125) 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. Roses area of practice included business litigation and tax litigation, which he has practiced since 1995. He estimated at trial that he had testified as an expert witness approximately four times in ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 22

other trials to determine damages for a plaintiff. (1RT169:3-10) Mr. Rose calculated the damages in this case by analyzing Mr. Kanjs 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. Kanjs position with Viejas and his subsequent employment with Bahrain Oil Company. (1RT173:1-16) Mr. Rose concluded that, over the course of Mr. Kanjs work life, he will have lost $2,550,000 in lost salary due to the termination. (1RT174:422) 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. Kanjs 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

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23

controlling law for the standard of review for ARB, which called for de novo review of both factual and legal issues. The section provided as follows: Any party desiring to seek review, including judicial review, of a recommended decision of the administrative law judge shall file a petition for review with the Administrative Review Board...If a timely petition review is filed, the recommended decision of the administrative law judge shall be inoperative unless and until the Board issues an order adopting the recommended decision.... (29 C.F.R. 24.8 [emphasis added]) As this law was in effect at the time of filing, it should therefore be applied Although the ARB has changed the standard of review since Mr. Kanjs 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 ALJs conclusions of law de novo (29 C.F.R. 24.110(b)), and reviews the factual findings under the substantial evidence standard. (Id.)

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24

(Schafermeyer v. Blue Grass Army Depot, ARB Case No. 07-082, slip op. at 2, fn. 3 (ARB September 30, 2008)) Here, even if the ARB were to apply the substantial evidence standard from 29 C.F.R. 24.110(b), it would still find that the decision of the ALJ is not supported by substantial evidence.4 VI. ARGUMENT Section 507(a) of the CWA, 33 U.S.C. 1367(a), states, in relevant part: No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . by reason of the fact that such employee . . . has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter. To state a claim under the whistle blower provision of an environmental statute, the plaintiff must establish that his employer retaliated against him because he engaged in a protected activity. (Sasse v. United States DOL, 409 F. 3d 773, 779 (6 th Cir. 2005)) The 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. 06041, 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 might accept as adequate to support a conclusion. (Getman v. Sw. Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at 7 (ARB July 29, 2005)) As detailed here below, because the ALJ did not consider relevant material facts, and attributed statements to witnesses that they did not make, the decision of the ALJ is not based on substantial evidence. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 25
4

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. Complainants 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. Kanjs termination (i.e., reasons created for litigation)were not documented until after Mr. Kanj first complained of the adverse employment actions. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 26

A.

Mr. Kanj Engaged in Protected Activity

The record demonstrates that Mr. Kanj was engaged in protected activity in reporting to the Tribe about the water pollution, because it was not within his job description to report on water quality of the Creek. At trial, the Tribe admitted Mr. Kanj had an objective and subjective basis for the complaints he made regarding the fecal contamination. (1RT64:14-66:4) The ALJ agreed that Mr. Kanj engaged in protected activity. In making its conclusion, the ALJ even went so far as to discount the importance of job descriptions in determining the meaning of protected activity: [T]he scope of Kanjs job duties is ultimately not a determinative issue with respect to the Courts 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 McDermotts 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 complainants employment must have known of the protected activity before the adverse action was taken. (Shirani v. Comed/Exelon Corp., ARB No. 03-100, ALJ ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 27

No. 2002-ERA-28 slip op. At 9-10 (ARB Sept. 30, 2005)) Because Mr. Kanj made presentations to the Tribal Council, and submitted reports to them about the contamination over a two-year period, the Council and Tribal Government Manager Wendy Roach had notice that Mr. Kanj was reporting on the contamination of Viejas Creek before Mr. Kanjs 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 Tribes 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. Kanjs 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. Kanjs initial report, he received no further performance evaluations and only one salary ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 28

increase. The failure to provide annual evaluations was an undisputed departure from the Tribes standard evaluation process, and reflects that Mr. Kanjs whistle-blowing resulted in immediate adverse employment actions, culminating in Mr. Kanjs termination. The investigation occurred immediately after a June 2, 2005 letter sent by Mr. Kanjs attorney rejecting the proposed severance agreement and notified the Tribes 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. Kanjs attorney, which accused the tribe of unfair treatment resulting from Mr. Kanjs 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 ALJs 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. Kanjs 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 COMPLAINANT OPENING BRIEF ON APPEAL 29

ARB CASE NO. 12-002

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. Hydes position of influence, the evidence showed the negative treatment of Mr. Kanj contributed to a hostile work environment. Mr. Hydes 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. Hydes behavior made it difficult for Mr. Kanj to comfortably perform his job and attend meetings, and, although they promised to help, Council members did nothing to remedy ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 30

the situation. (Compl. Ex. 94) This, coupled with the fact that Mr. Hydes 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. Hydes actions, and the Tribal Councils conforming to his influence, contributed to the creation of a hostile work environment for Mr. Kanj. ii. The Tribes Refusal of Mr. Kanjs Vacation Request

It is also circumstantial evidence of a contributing factor that the Tribe denied Mr. Kanjs 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 Tribes 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 Tribes 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. Kanjs return, the Tribe chose to keep the information of Mr. Kanjs termination a secret ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 31

until he had returned from his 10-day vacation, so that he did not have the option of enjoying the needed time with his parents. Although Mr. Kanj was not terminated for cause, the Tribe terminated him in such a way as to maximize inconvenience and disruption. The ALJ did not consider this evidence reflecting the Tribes intention to harm Mr. Kanj, arising from Mr. Kanjs 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. Kanjs reporting. In March 2003, Mr. Kanjs report and suggestion to fence the creek were met with a great deal of opposition from Mr. Hyde, at which point the Tribe decided to take no action on the matter. As a result, the relationships between between Mr. Kanj, the Tribe, and Mr. Hyde became strained. In response, Mr. Kanj cooled off on making reports to the Tribe for a short time. (2RT343:21-344:15) Thus, in the months preceding his final pay increase, Mr. Kanj had temporarily stopped making reports of fecal coliform contamination. Thereby raising an inference that if Mr. Kanj had stopped pestering the ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 32

Tribe, all would have been well. During the two year period between July 2003 and his termination in July 2005, Mr. Kanj received only one salary increase. (Compl. Ex 105) The Tribes 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. Kanjs 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. Kanjs 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. Kanjs 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 COMPLAINANT OPENING BRIEF ON APPEAL 33

ARB CASE NO. 12-002

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. Kanjs 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. Kanjs 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. Kanjs protected activity was a contributing factor by itself. Instead, the ALJs 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. Kanjs termination. This approach mistakes the appropriate standard. Specifically, the ALJ concluded: The undersigned finds that Viejas two overarching reasons for terminating KanjKanjs allegedly poor work performance, specifically in relation to his supervision of the gymnasium construction project, and Kanjs apparent lack of commitment, as evidenced in the manner and timing in which he requested his vacation leaveare sufficiently grounded in the evidence and adequate bases for Kanjs termination. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 34

(ALJ Decision 48) i. Mr. Kanjs 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 ALJs analysis is silent on the contributing nature of Mr. Kanjs whistle blowing. The ALJ noted that Mr. Hyde placed cultural significance on his cattle remaining on the Tribes 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. Hydes considerable influence on the Tribe and its actions. (2RT514:24-25) Mr. Hydes intense and hostile reaction against putting up fences coupled with Mr. Hydes ability to influence the Tribes 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. Kanjs initial report in March of 2003 and his termination in June of 2005 ignores two points. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 35

(Dec. and Order 40-41) First, after his initial report in March of 2003, Mr. Kanj backed off from reporting pollution to the Tribe in an effort to let things cool down. Therefore, the ALJ was mistaken to merely analyze temporal proximity based solely on the first report. Mr. Kanj made several reports to the Tribal Council regarding contamination. Specifically, Mr. Kanj received reports of fecal contamination from the Environmental Engineering Laboratory (EEL) from samples taken on February 20, 2004, January 25, 2005, March 1, 2005, March 24, 2005, and April 6, 2005, which he then reported to the Tribal Council. (Compl. Ex. 144, 29, 31) The ALJ mistakenly analyzed the initial report in isolation, however, it is clear that the reports coming in from the EEL were increasing in the months leading up to Mr. Kanjs 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. Kanjs 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 Complainants burden of proving a causal connection. (See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ([M]ere temporal proximity between an employer's knowledge of protected activity and an adverse employment action [can establish] sufficient evidence of causality to establish a prima facie case . . . [if] the temporal proximity [is] very close) (citation omitted); ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 36

Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009) (A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action.).) ii. Wendy Roachs Submission of Reports in Mr. Kanjs Name Evidences Animosity Perceived by Mrs. Roach From the Tribal Council to Fencing Proposal

Another issue which was not addressed in the ALJs decision was the report to the Tribal Council, dated June 28, 2005, submitted by Mrs. Roach in Mr. Kanjs 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. Roachs decision to leave Mr. Kanjs 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. Kanjs termination. The ALJ did not address this evidence which revealed the true motivation behind Mr. Kanjs termination. Of course, had there been legitimate complaints about Mr. Kanjs 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. Kanjs Termination Are Pretextual

If the employee demonstrates pretext, the ARB may infer that the protected activity ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 37

led to the termination. (See St. Marys Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)) An employers 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 Tribes reasons for terminating Mr. Kanj were contrived for litigation. Based on the conflicting testimony and lack of justification behind Mr. Kanjs 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 Tribes unlawful conduct.) In fact, even the investigation done by Mrs. Roach leading to Mr. Kanjs termination was not supported by any documentation. i. Wendy Roachs 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 Roachs Claim of Ignorance Regarding Mr. Kanjs Report of Retaliation is Absurd. On June 7, 2005, prior to the decision to terminate Mr. Kanj, Mr. Kanjs counsel sent a letter to Ms. Vitols, General Counsel for the Tribe. (Compl. Ex. 41) The letter makes several claims regarding Mr. Kanjs harassment, including that he was discriminated against by the Tribe for providing reports regarding violations of the Clean Water Act, and for reasons relating to his national origin. (Id.) As Mrs. Roach was Mr. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 38

Kanjs 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. Roachs 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 cant - - 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 theyre there in front of the Tribal Council that youre presenting a proposal to terminate this same individual. (4RT967:24-968:4) Finally, in the decision itself, the ALJ noted that Mrs. Roachs assertion was incredulous. (Dec. and Order p. 25) But this conclusion is irreconcilable with the ALJs subsequent conclusion that Mrs. Roachs proffered reasons for termination were very credible. (Id.) The ALJs negative assessment of Mrs. Roachs 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. Kanjs Vacation

The facts surrounding Mr. Kanjs vacation carry with them a great deal of ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 39

significance in this case, because the manner in which the Tribe dealt with Mr. Kanj and his vacation is demonstrative of an intent to harm him. Therefore, the fact that Mrs. Roachs testimony on this issue is also inconsistent further demonstrates her lack of credibility and the Tribes true motives. For example, Mrs. Roach paints a picture that Mr. Kanjs 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 21st . He was coming back within - - he told me he was going 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 didnt you - - why didnt 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 email. He told me he was returning. I had the opportunity to speak with him in person. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 40

(4RT960:13-16) Thus, Mrs. Roach claimed she allowed Mr. Kanj to return from his 10day 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 dont 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. Kanjs visit, and also underscores the badfaith nature of allowing Mr. Kanj to return from Lebanon to demonstrate the proper etiquette of firing him in person 5 . c. Mrs. Roachs Testimony Regarding Her Decision to Terminate Mr. Kanj Is Also Inconsistent

The date of Mr. Kanjs termination is another fact which Mrs. Roach could not

It is also worth noting that Mr. Kanjs motives to go to Lebanon do not support Mrs. Roachs 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. Kanjs 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 Tribes 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. Kanjs 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 elses e-mail due to vacation in the past. (Depo. of Roach 133:2-9) At trial, Mrs. Roach testified that the real reason for locking his e-mail account was because he had been taken off the gymnasium project. But Mrs. Roach never informed Mr. Kanj of his removal from the ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 42

gymnasium project. Instead, she claimed she wanted to prevent him from working on vacation because she wanted to prevent Mr. Kanj from making a wage claim. (4RT908:11-909:2) Thus, Mrs. Roach claimed that by June 13, 2005 she knew Mr. Kanj would be terminated, even though she identified June 18, 2005 as her decision at trial. It is clear from this interaction that the Tribe was not being truthful with Mr. Kanj. By her own admission, Mrs. Roach did not care that Mr. Kanj was on vacation, only that he not interfere with the gymnasium. However, in addition to her misrepresentation to Mr. Kanj, the fact that Mrs. Roach was anticipating a wage claim on June 13, 2005 suggests that she already had already made the decision to terminate him. While this is noted to demonstrate Mrs. Roachs lack of credibility, the expedience with which she made her decision also reflects that Mrs. Roach did not have time to actually assess Mr. Kanjs 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. Kanjs Job Performance

The pretextual nature of the Tribes reasons for terminating Mr. Kanj is evident not only in Mrs. Roachs lack of credibility, but also in an analysis of the complaints themselves. First, the sincerity of the Tribes complaints is undermined by the utter lack of documentation regarding Mr. Kanjs alleged poor work performance. In fact, Mrs. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 43

Roach herself admits that, prior to June 6, 2005, the Tribe did not have any complaints of Mr. Kanjs 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 Complainants Exhibit 656 , she decided to instantly remove Mr. Kanj from the gymnasium project, the same project the Tribe had claimed, days before, that Mr. Kanjs 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, 2005 meeting regarding change orders was prepared on June 2, 2005. This is the same day the Tribe received a letter (via facsimile) from Mr. Kanjs 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. Joness testimony that the architect and the general contractor who were combative with each other, not Mr. Kanj. (2RT458:15-23) Furthermore, Brian Frasier affirmed that the gymnasium was not suffering from harmful delay, as was allegedly represented to Mrs. Roach at the meeting. In his Executive Summary for April of 2005, Mr. Jones notes that the gymnasium project was progressing and was only 18 working days behind schedule, mostly due to inclement weather. (Frasier Depo. at 90:9-22; Ex. 6: 4313-14) In light of the fact that this project was several years in the making (4RT898:19-899:7), it is difficult to conceive of how the Tribe could sincerely argue to the ALJ that Mr. Kanj was responsible for a significant delay, especially when that delay was attributed to weather. Indeed, Mr. Frasier again affirmed that the Gymnasium is progressing at a fast pace in his May 2005 Executive Summary. (Frasier Depo. Ex. 6: 4315) There is no ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 45

mention of any delay in any contemporaneous documents that was caused by Mr. Kanj. Despite the reports demonstrating that the gymnasium project was on track, and the spreadsheet identifying issues at the June 6, 2005 meeting which largely identify problems with the architect rather than Mr. Kanj, Mrs. Roach instantly removed Mr. Kanj from the project after the meeting. Moreover, although Mr. Kanj had yet to leave for Lebanon, Mrs. Roach neither consulted him before deciding to remove him from the project nor notified him when she did. (4RT905:15-21) The only truly time-sensitive priority to the Tribe was not even addressed at the June 6, 2005 meeting. According to the Tribe, the priority on the gymnasium was that the surrounding grass be ready for the 4th of July celebration. (3RT712:13-713:16) However, the parts that were to be used for that celebration did not require Mr. Kanjs supervision to be completed. (3RT711:25-712:12; 3RT754:25) Big-D had already informed Mr. Kanj that it would proceed to hydroseed the area unless it heard specific directions to lay sod. (Frasier Depo. Ex. 22) Therefore, his presence was entirely unnecessary for the only time sensitive issue: the grass. Furthermore, regarding the asphalt parking lot, it was neither time-sensitive nor was his presence necessary when a consulting engineer who designed the project would have been available at all times. An examination of the reasons cited as bases for action against Mr. Kanj regarding the gymnasium are quickly exposed as being minor, if not fabricated. (Compl. Ex. 40) The ALJ never addressed the inconsistency within the documented reports of delays or why a long-term and high-level employee like Mr. Kanj would be terminated in such an ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 46

odd manner against the testimony of the Tribe. b. Senior Landscaping Program

At trial, Mrs. Roach claimed that another project Mr. Kanj was needed for was the Senior Landscaping Program, a program where the Public Works employees worked with seniors to landscape the area around their homes. (4RT892:14-25) With respect to his vacation, Mr. Kanj reasonably believed that he did not need to be present for the landscaping project because he had a manager, Don McDermott, handling it. (3RT758:119) Amazingly, despite Mrs. Roachs belief that Mr. Kanj was giving Viejas a bad reputation because he was difficult to work with, Mrs. Roach said Mr. Kanjs presence was necessary on this project because he was able to work with the seniors while others were distrusted. (4RT906:12-25) These positions are incompatible. The testimony further demonstrates that the Tribe simply pretextual arguments to justify its treatment of Mr. Kanj. To be clear, Mrs. Roach claimed that Mr. Kanj could not visit his parents to help them recover from surgery because some of the seniors can be a little cantankerous, and, therefore, someone higher up was necessary to work out a solution to make that program work. (4RT907:2-11) Of course, it is absurd for the Tribe to suggest that Mr. Kanj, a licensed professional engineer, and the Deputy Tribal Government Manager, Director of the Public Works Department needed to be there to oversee the program to deal with some cantankerous seniors. Furthermore, the Tribe makes no effort to reconcile how it can hold that he was the only one who had the people skills to keep things running smoothly on one project but was giving the Tribe a bad ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 47

reputation because of his behavior on another. Mr. Kanj gave the example of a shovel being left behind as the type of complaint raised by seniors in the course of the program. (3RT757:17-23) The Senior Grdening program was never shown to be off track; it was simply intended to help seniors with their gardening. In fact, there was no set time table for the program. The Tribal member in charge of the program, Mabel Velasquez, never made any suggestion to Mrs. Roach that Mr. Kanj be fired. Nor was there documented evidence introduced that Ms. Velasquez was displeased with his performance. (Depo. of Roach 68:24-69:22) c. Water Reclamation Project

Mrs. Roach also listed the Water Reclamation Project as a reason Mr. Kanjs 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. Kanjs 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. Kanjs poor ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 48

performance in supervising the gymnasium project contributed to the ultimate decision to terminate his employment. (4RT892:6-10) Specifically, there was an issue regarding his holding up the approval of work orders. However, Mr. Kanj was told by Tribal Council member Alan Barrett that he should scrutinize change orders carefully, since they are a means by which construction companies would drive up their costs. And, the Tribe previously had problems with the contractor at issue. (2RT388:19-390:20) The Tribe did not want Mr. Kanj to rubber-stamp the change orders simply to keep construction moving. (2RT384:6-20) Therefore, the Tribe asserts an implausible factual argument: Mr. Kanj had to scrutinize change orders and hold the bidder to their bid, ut because Mr. Kanj did too good of a job he was terminated. Mr. Frasiers supports the necessity of scrutiny on the part of an owners representative. He testified in his deposition that not scrutinizing change orders would mean an owners representatitive person was not doing his job. (Frasier Depo. at 89:14:22) In compliance with this view, Mr. Kanj scrutinized change orders in order to keep the construction company from running up costs. Nevertheless, while the Tribe and Big-D paint a picture that Mr. Kanj simply rejected all change orders, the reality is that he had already approved hundreds of thousands of dollars worth of change orders requested by Big-D. (Frasier Depo. at 95:6:20) Mr. Kanj acted with the best interests of the Tribe in mind, and to save the Tribe money as he was directed. Prior to this litigation, he was never notified that his scrutiny of the change orders was causing a delay, nor told that the Tribe was unhappy with his ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 49

work. (2RT536:13-2:537:7) Steve Jones explained that there was a delay in the project due to weather. (2RT427:24-428:3) However, at trial, the Tribe submitted no documents substantiating its alleged claims that it was Mr. Kanj who was at fault for the delays. b. Request to Visit Parents in Lebanon

It would be a dangerous precedent to conclude that a person requesting time off to visit his parents is evidence of a lack of commitment to an existing job. Mr. Kanj framed the issue well when he wrote to the Tribal Council, I have an obligation for my job, and I have an obligation toward my parents. I will not do anything to undermine any of these obligations. (Compl. Ex. 34) However, Mrs. Roach claimed it was inappropriate to request to leave in the middle of the gymnasium project, even though she ultimately removed him from the project before he even departed to Lebanon. At trial, Mrs. Roach claims that she verbally communicated to Mr. Kanj that it was not a good time for him to leave for a month. (4RT892:6-893:10) However, Mrs. Roach still took Mr. Kanjs 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.7 Had Mrs. 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. Kanjs vacation in 2002 occurred at a time when even more projects were pending, and there was never an issue with him taking such a lengthy vacation at that time. (1RT160:5-8) ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 50

to procure a three-week vacation for him. Torn by his obligations, and in response to this discrimination, Mr. Kanj suggested splitting with the Tribe. (3RT731:7-743:19) If his presence were actually necessary, then it was reasonable for Mr. Kanj to believe that splitting would be a negotiation tactic to help get the time he needed to see his parents. However, if his presence was not as necessary as the Tribe suggested, then Mr. Kanj was already suffering discrimination and cannot be faulted for contemplating leaving. The Tribe has attempted to flip their discrimination of Mr. Kanj by saying that he lacked commitment by his suggesting that he and the Tribe should part ways. (4RT895:20-25) However, the fact that the Tribe served Mr. Kanj with a proposed severance agreement the morning after he first mentioned splitting shows that the Tribe was simply waiting for the an opportunity to mask its intention to take adverse action against him. (3RT731:22-734:7) To adopt the reasoning of the Tribe and the ALJ, a whistle blower would lose protection by attempting to mitigate damages when he sought new employment in the face of harassment and discrimination. When an employee suffering discrimination from an employer intimates that he must seek other employment as a result of the discrimination, he cannot be faulted for lack of commitment. Instead, this is precisely the situation in which such an employee must be protected. Otherwise, the law would encourage silence and inaction on the part of the discriminated employee and obviate the intention of the whistleblower statutes. ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 51

Because the ALJ did not consider all the material evidence, its conclusion that the Tribes 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. Kanjs 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 employers 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. Kanjs termination. The ALJ concluded that the Tribes reasons were sufficiently grounded in evidence and, thus, lawful reasons for termination. It reached this conclusion despite the fact that the showing that the Tribe terminated Mr. Kanj without cause under his contract and then later decided to cite numerous causes for termination. (Compl. Ex. 35 and 9) Additionally, the ALJ misapplied the burden that Mr. Kanj had in proving the ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 52

Tribes 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. Kanjs 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. Kanjs 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. Kanjs 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. Kanjs counsel calling attention to his rights as a whistleblower was received by the Tribe within two weeks of the decision to terminate Mr. Kanj. Therefore, there is a close temporal proximity between the reports and adverse action. Additionally, while temporal proximity is a consideration, it is not dispositive. Temporal proximity is just one factor for the trier of fact to weigh in deciding the ultimate question of whether a complainant has proved by a preponderance of the evidence that retaliation was a contributing factor in the adverse action. (Thompson v. Houston Lighting & Power Co., ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 53

ARB No. 98-101, ALJ No. 96-ERA-34, slip op. at 6 (ARB March 30, 2001)) Furthermore, the Court ignored the issue that the Tribes failure to provide performance reviews was itself a kind of adverse employment action which began in conjunction with Mr. Kanjs reports. The complainants 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. Kanjs initial reports on the contamination of the Viejas Creek and other adverse action Mr. Kanj described, including discrimination, lack of performance reviews and salary increases, and a hostile work environment. The ALJ failed to consider that Mr. Kanj was not only complaining about his termination as the sole adverse action the Tribe took. The termination of his employment was the culmination of years of disparate treatment once his contamination reporting began. Circumstantial evidence may include temporal proximity, indications of pretext, inconsistent application of an employer's policies, shifting explanations for an employer's actions, and more. (Sylvester v. Parexel Int'l. LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-039, -042, slip op. at 27 (ARB May 25, 2011).) As Judge Posner stated, discrimination can be proved by assembling a number of pieces of evidence none meaningful in itself, consistent with . . . statistical theory that a number of observations each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction. (Sylvester v. SOS Children's Vills. Ill., ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 54

Inc., 453 F.3d 900, 903 (7th Cir. 2006).) It was not the intention of Congress that a complainant obtain a confession as to motivation of the respondent to obtain relief. VII. JAMAL KANJ SUFFERED HARM AS A RESULT OF THE ADVERSE ACTION Complainant Kanj suffered financially, and emotionally, from the Tribes 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. Kanjs 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 Judges ruling dismissing his complaint for retaliation by Respondent Viejas Band of Kumeyaay Indians. Mr. Kanj further requests that the Board order, as remedies for the ARB CASE NO. 12-002 COMPLAINANT OPENING BRIEF ON APPEAL 55

Tribes unlawful conduct, reinstatement, emotional distress, back pay, damages, attorneys fees, and such other relief as is determined to be proper.

Dated:

The McMillan Law Firm, APC

Scott A. McMillan Attorneys for Complainant Jamal Kanj

ARB CASE NO. 12-002

COMPLAINANT OPENING BRIEF ON APPEAL

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