Page 659

if a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. (3) GROUNDS FOR DETERMINATION OF COMPLAINTS.— (A) IN GENERAL.—The Secretary of Labor shall dismiss a complaint filed under this subsection, and shall not con- duct an investigation otherwise required under paragraph (2), unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. (B) REBUTTAL EVIDENCE.—Notwithstanding a finding by the Secretary of Labor that the complainant has made the showing required under subparagraph (A), no investiga- tion otherwise required under paragraph (2) shall be con- ducted, if the employer demonstrates, by clear and con- vincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior. (C) EVIDENTIARY STANDARDS.—The Secretary of Labor may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in paragraphs (1) through (4) of sub- section (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. Relief may not be ordered under subparagraph (A) if the employer dem- onstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior. (4) ISSUANCE OF FINAL ORDERS; REVIEW PROCEDURES.— (A) TIMING.—Not later than 120 days after the date of conclusion of any hearing under paragraph (2), the Sec- retary of Labor shall issue a final order providing the relief prescribed by this paragraph or denying the com- plaint. At any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary of Labor, the complainant, and the person alleged to have committed the violation. (B) PENALTIES.— (i) ORDER OF SECRETARY OF LABOR.—If, in response to a complaint filed under paragraph (1), the Secretary of Labor determines that a violation of subsection (a) has occurred, the Secretary of Labor shall order the person who committed such violation— (I) to take affirmative action to abate the viola- tion; (II) to reinstate the complainant to his or her former position, together with compensation (including back pay) and restore the terms, condi- tions, and privileges associated with his or her employment; and (III) to provide compensatory damages to the complainant. LAWS (ii) PENALTY.—If an order is issued under clause Assessment. (i), the Secretary of Labor, at the request of the complainant, shall assess against the person againstPUBLIC with on anorris VerDate Nov 24 2008 10:40 Sep 02, 2010 Jkt 089139 PO 00203 Frm 00659 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL203.111 APPS06 PsN: PUBL203