PUBLIC LAW 107-355 —DEC. 17, 2002 116 STAT. 2991 contributing factor in the unfavorable personnel action alleged in the complaint. " (ii) SHOWING BY EMPLOYER.— Notwithstanding a finding by the Secretary of Labor that the complainant - has made the showing required under clause (i), no
- investigation otherwise required under subparagraph
(A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior. "(iii) CRITERIA FOR DETERMINATION BY SEC- RETARY. — The Secretary of Labor may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. "(iv) PROHIBITION. —Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior. " (3) FINAL ORDER.— " (A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREE- MENTS.— Not later than 90 days after the date of conclusion of a hearing under paragraph (2), the Secretary of Labor 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 of Labor, the complainant, and the person or persons alleged to have committed the violation. "(B) REMEDY. — 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 or persons who committed such violation to— "(i) take affirmative action to abate the violation; "(ii) reinstate the complainant to his or her former position together with the compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and "(iii) provide compensatory damages to the complainant. If such an order is issued under this paragraph, the Secretary of Labor, at the request of the complainant, shall assess against the person or persons against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred, as determined by the Secretary of Labor, by the complainant for, or in connection with, the bringing the complaint upon which the order was issued. "(C) FRIVOLOUS COMPLAINTS. —I f the Secretary of Labor finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary of Labor
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