Page:United States Statutes at Large Volume 122.djvu/3087

 12 2 STA T .3064PUBLIC LA W 110 – 314 — AU G .14 , 200 8behaviord e sc ribed i np ara g raphs (1)t hro u gh( 4 )o f subsection (a) w as a contributing factor in the unfavorab l e personnel action alleged in the co m plaint .‘ ‘(iv) R elief ma y not be ordered under subparagraph ( A )if the employer demonstrates by clear and convincing evidence that the employer would have ta k en the same unfavorable personnel action in the absence of that behavior. ‘‘( 3 )(A) N ot later than 1 20 days after the date of conclusion of any hearing under paragraph (2) , the S ecretary shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. 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, the complainant, and the person alleged to have committed the violation. ‘‘( B ) I f, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has occurred, the Secretary shall order the person who committed such violation — ‘‘(i) to take affirmative action to abate the violation ‘‘(ii) to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and ‘‘(iii) to provide compensatory damages to the complainant. If such an order is issued under this paragraph, the Secretary, at the re q uest of the complainant, shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and e x penses (including attorneys ’ and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. ‘‘( C ) If the Secretary finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary may award to the prevailing employer a reasonable attorneys’ fee, not exceeding $ 1,000, to be paid by the complainant. ‘‘(4) If the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 9 0 days after receiving a written determination, the complainant may bring an action at law or equity for denov o review in the appropriate district court of the U nited States with j urisdiction, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury. T he pro - ceedings shall be governed by the same legal burdens of proof specified in paragraph (2)(B). The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including— ‘‘(A) reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimi- nation; ‘‘(B) the amount of back pay, with interest; and ‘‘(C) compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney’s fees. ‘‘( 5 )(A) Unless the complainant brings an action under para- graph (4), any person adversely affected or aggrieved by a final Deadlin e s. Deadline. Or der.

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