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| September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
Office of Administrative Law Judges 1111 20th Street, N.W. Washington, D.C. 20036 Case No. 85-ERA-6 In the Matter of
BILLIE IRENE ORR,
v.
BROWN AND ROOT, INC.,
STEPHEN M. KOHN, ESQ.
RICHARD K. WALKER, ESQ.
[Page 2]
Before: ROBERT J. FELDMAN
ON MOTIONS FOR SUMMARY JUDGMENT In this "Whistle-Blower" proceeding under Section 210 of the Energy Reorganization Act (42 U.S.C. § 5851), Complainant moves for summary decision assessing damages for alleged harassment, intimidation and blacklisting; Respondent cross- moves for summary decision dismissing the complaint. The gravamen of the action is the disclosure of certain confidential information regarding Complainant's discharge from Respondent's employ, purportedly in violation of the provisions of Section 210 and the pertinent implementing regulation thereof, 29 C.F.R § 24.2(b).
Preliminarily, it should be noted that in the proceeding before this office there is only one Respondent, to wit, Brown and Root, Inc., Complainant's erstwhile employer. Both the statute and the regulations are bottomed in the rights and obligations of master and servant. Accurately denominated "Employee Protection" provisions, they expressly proscribe discharge or other discrimination by an employer. Although it is arguable that a single proceeding could be brought against more than one respondent in a case of dual employment, there is not the slightest doubt that Section 210 does not prohibit any act by a person, firm or corporation having no employment relationship - past, present, future, inchoate or potential - with the complainant. Consequently, the remedy may be invoked solely and exclusively against an employer. Complainant's futile efforts to implead Respondent's law firm herein by reference in her initial administrative complaint to its activities in diverse proceedings and by inserting the abbreviated words "et al." in the caption of some of its filed papers are a complete nullity. Whatever liability the law firm may have incurred by reason of one its partner's indiscreet disclosure is clearly not enforceable under Section 210. The question to be determined here is whether Respondent Brown and Root, Inc. was an employer [Page 3] within the meaning of the Act, and if so whether it violated any provision thereof. This proceeding was initiated by Complainant's letter dated october 11, 1984, to the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, complaining that Respondent and its law firm had violated Section 210 and the regulations thereunder by disclosing the asserted reason for its termination of her employment, contrary to the terms of a settlement agreement pursuant to which her prior complaint of March 7, 1984 (for wrongful discharge under Section 210) had been dismissed. Under date of November 20, 1984, the Administrator, Wage and Hour Division, advised Complainant that he determined that her complaint was without merit. Among other things, he stated:
[Page 4] Within five calendar days of receipt of the above determination, Complainant filed with this Office a request by telegram for a hearing on the complaint. The time constraints of 42 U.S.C. § 5851(b)(2)(A) and 29 C.F.R. §§ 24.5 and 24.6 having been waived by the parties, discovery was initiated and a number of motions in connection therewith have been made and disposed of. Complainant now moves for an order granting summary decision on the issue of liability, with damages and other appropriate relief to be determined after a limited hearing. Respondent not only opposes that motion, but moves to dismiss the complaint with prejudice on grounds of lack of jurisdiction of the subject matter and failure to state a claim upon which relief can be granted, and cross-moves for summary decision on the ground that the uncontested facts do not constitute a violation of Section 210.
Complainant was employed by Respondent as a document control clerk at the Commanche Peak nuclear power site until February 8, 1984, when she was terminated involuntarily. On March 7, 1984, she filed a complaint with the Secretary of Labor alleging that her termination was illegal and the direct result of her refusal to violate safety procedures. Several months later, negotiations were initiated with a view towards reaching an amicable adjustment, and on July 24, 1984, a settlement agreement was concluded. In the negotiation and drafting of the settlement instruments, Respondent was represented by Bishop, Liberman, Cook, Purcell & Reynolds, Esqs. of New York City and Washington, D.C., its lead counsel in the proceeding being Bruce L. Downey, Esq., a member of the firm. Complainant's attorney of record was john Clewett, Esq. of Washington, D.C., but she was represented in the main by Ms. Billie Garde, a law student associated with an organization named Government Accountability Project. Pertinent provisions of the settlement agreement are in substance as follows:
[Page 5]
The principal reason for Complainant's discharge was her alleged misconduct, specification of which would be likely to subject her to disgrace and would no doubt adversely affect her chances of subsequent employment. It was known to all participants in the discussions and execution of the settlement that the chief motivating factor in Complainant's dropping of her Section 210 charges was to prevent any disclosure of that reason for her termination. Under date of August 1, 1984, upon Complainant's motion and the settlement agreement and general release, both dated july 24, 1984, Administrative Law Judge Halpern of the Department of Labor issued an order dismissing the proceeding with prejudice pursuant to 29 C.F.R. 24.5.
[Page 6] nbsp; On September 20, 1984, Mr. Downey was engaged in an Atomic Safety and Licensing Board hearing under the Nuclear Regulatory Commissioner as counsel to the applicant Texas Utilities Generating Company, which was one of the Commanche Peak owners that Respondent had included as a beneficiary of the general release executed by Complainant. in the course of a collateral proceeding in which opposing counsel was attempting to show that Respondent had intimidated a witness, Mr. Downey in response referred to an earlier charge that he had attempted to intimidate this Complainant, stating that on that occasion he had made an effort to avoid bringing before the Department of Labor, and ultimately the Atomic Safety and Licensing Board, the real reason for her termination referred to above. In so responding, he needlessly made explicit reference to the unlawful conduct the disclosure of which the settlement agreement had been designed to prevent. On or about October 12, 1984, a Mr. Yockey of Respondent's personnel department also disclosed the reason for Complainant's termination in the course of a hearing before the Texas Employment Commission. Under date of October 23, 1964, Respondent's attorneys advised the Commission that Mr. Yockey was not authorized to offer any evidence on behalf of Respondent other than a statement to the effect that Respondent had agreed to withdraw its opposition to Complainant's unemployment claim, disavowing any other statement, representation or argument theretofore made by Mr. Yockey. Although Respondent's letter of reference required by the settlement agreement was dated November 6, 1984, it was not turned over to Complainant or her representative until January 15, 1985. Complainant was never at any time employed by Bishop, Liberman, Cook, Purcell and Reynolds, Esqs., nor did she ever apply to that firm for employment. Moreover there is no evidence that Complainant ever had any reasonable expectation of seeking employment in that firm. Complainant has not been employed by Respondent since February 8, 1984, and except for the formal request for reinstatement in her complaint in this proceeding, she has made no application to Respondent for rehiring.
[Page 7] It is undeniable that Respondent and its counsel violated the spirit, if not the letter, of the Settlement Agreement. The provisions for the letter of reference and the precise wording of any response to inquiries, and especially for sealing Complainant's personnel records, make it unmistakably clear that although any detrimental material in her file need not be changed or expunged, the nature of the alleged misconduct was to remain confidential. Such provisions, read in the light of the entire agreement, clearly constitute a firm commitment on the part of Respondent to never divulge the reason for Complainant's termination. By August 1, 1964, Complainant had satisfied alL requirements imposed upon her by the agreement and the case had been dismissed with prejudice. Respondent contends that since there had been no entry of a final decision of the Secretary of Labor, it was not obliged to perform any of its commitments under the agreement, and therefore did not have to give her any letter of reference whatsoever and was free to publish to the world the reason for her termination. That, of course, is hypertechnical hogwash. The fact is that no final decision of the Secretary of Labor was ever realistically anticipated. Judge Halpern's order of August 1, 1984 was a final order dismissing Complainant's complaint with prejudice; it was expressly issued under 29 C.F.R. § 24.5 as a dismissal; it was not, and was never intended to be, a recommended decision pursuant to Section 24.6. Judge Halpern's order was final and appealable upon issuance; no further order of anyone was necessary or appropriate. Section 210 expressly provides:
[Page 8] In the light of the above provisions, the fair intent of Judge Halpern's action in signing the voluntary dismissal was to act as the representative of the Secretary of Labor in settling the case with Respondent and with the participation and consent of the Complainant. In any event, whether pursuant to Section 24.5 of the Rules or to Section 210 of the Act, his order was final and no further order of the Secretary was required. Thus it is clear that at all times after the entry of judge Halpern's order on August 1, 1984, Respondent's obligations under the settlement agreement were in full force and effect. Whether the conduct of Respondent's representatives constituted a breach of that agreement or of ethical standards is not properly determinable in this Proceeding, however. What is painfully apparent is that the uncontested facts and applicable law submitted on these motions do not show that the disclosures and/or the failure to timely provide a reference constituted a violation of Section 210. The case of Greenwald v. The City of North Miami Beach, 80 SDWA 2, decision of the Secretary, April 14, 1980, is in point. Under parallel provisions for Employee Protection contained in the Safe Drinking Water Act, 42 U.S.C. 300(f), et seq., Greenwald had filed a prior complaint alleging that he had been discharged because he had engaged in a protected activity. His complaint was dismissed on the ground that it had not been timely filed, and the dismissal was affirmed by the Secretary and thereafter by the Court of Appeals for the Fifth Circuit (see 587 F.2d 779). Subsequently, he applied for re-employment and was rejected. He then filed a second complaint alleging continued discrimination in violation of that Act in the City's failure to rehire him. The administrative law judge issued a recommended decision in which he recommended that the complaint be dismissed for lack of subject matter jurisdiction, stating as his final conclusion:
[Page 9] Upon review, the Secretary of Labor found the decision of the administrative law judge to be correct and adopted it as his own. Accordingly, the second complaint was dismissed. An apparently contrary decision by an administrative law judge in Flanagan v. Bechtel Power Corporation, et al., 81-ERA-7 (Nov. 19, 1981), contains no reference to the Secretary's decision in Greenwald. It may thus be reasonably inferred that the Secretary's determination was not brought to the ALJ's attention. In any event, the decision in Flanagan cannot be regarded as authoritative. It is not disputed that the acts alleged herein to be in violation of Section 210 occurred when Complainant was no longer an employee of Respondent. As a result, the fundamental basis for statutory protection is missing, and Respondent's deplorable lack of integrity in this instance is beyond the reach of the Department of Labor. Even if there were no question as to the requisite employment relationship, it appears that there may be some question of fact as to whether there was harassment, intimidation, or black-listing within the meaning of the Act. Consequently, I am constrained to conclude that Complainant's motion for summary decision (partial or otherwise) must be denied. On the other hand, no material issue of fact is raised with respect to the absence of employment relationship, with the result that the party charged has not violated the Act. Consequently, Respondent's cross-motion for summary decision is required to be granted as a matter of law.
In view of the foregoing, and upon Complainant's motion for partial summary decision (with exhibits submitted thereon), Respondent's motion to dismiss the complaint with prejudice and cross-motion for summary decision (with exhibits submitted thereon), and upon all proceedings heretofore had herein, it is ORDERED that the complaint herein be, and the same hereby is, denied without prejudice to any action in any [Page 10] other forum for similar or other relief.
ROBERT J.
FELDMAN
Dated: 14 MAY 1985
RJF/mml
1 The precise language employed by Respondent's counsel in each of the conditional requirements of dismissal was the phrase "Upon the entry of a final decision of the Secretary of Labor dismissing her case with prejudice".
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