The inadequacy of the "contributing factor" standard utilized by the district court is illuminated by the fact that "tended to affect in any way UBS's decision to terminate plaintiff's employment" could include a scenario in which Murray's whistleblowing resulted in termination, but also a scenario in which, by virtue of his whistleblowing activity, Murray was insulated from a termination to which he would otherwise have been subjected sooner. In addition, "tended to affect" increases the level of abstraction such that a jury might look beyond whether the whistleblowing activity actually caused the termination to whether it was the sort of behavior that would tend to affect a termination decision.Which is to say -- I think -- that unless the district court actually instructed the jury to find that that UBS "intentionally retaliated" against Trevor, they might have ruled in his favor because they thought that UBS's retaliation prevented him from being fired sooner rather than causing him to be fired later, or they might have thought the court was asking them a philosophical question about how UBS might have retaliated against Trevor rather than charging them to decide whether UBS actually retaliated against Trevor. The metaphysical conundrums this raises are better pondered after a few stiff ones. But no matter how I parse the Murray decision, the question -- When can a retaliation ever be anything but intentional? -- remains unanswered. What can one say other than being a whistleblower is not for the faint of heart. They often torpedo their careers by standing up to illegal conduct, and we benefit from it. But when they try to recover whistleblower awards (see, e.g., https://www.brokeandbroker.com/4209/frumento-sec-whistleblower/) or compensation for retaliation, we do not make it easy for them. It is almost as if we grudgingly tolerate them when we should celebrate them. That's why whistleblowers, like poor Trevor here, often end up drenched in a hard rain falling.
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