WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

June 5, 1995

On May 19, 1995, the Department published as a Final Rule certain amendments to filing and service requirements in proceedings before the Office of Administrative Law Judges. 60 Fed. Reg. 26970 (May 19, 1995). The Final Rule is identical to the interim rule published on August 15, 1994, see 59 Fed. Reg. 41874 (Aug. 15, 1994), except that it conforms service when a party is represented by an attorney to the practice in the United States District Courts. See Fed. R. Civ. P. 5(b). Under the Final Rule, when a party is represented by an attorney, a litigant only needs to serve that attorney rather than both the attorney and the other party.

Other amendments finalized by the May 19, 1995 publication

• permit parties to use fax or overnight courier services where in the past they could only use telegrams,

• provide restrictive standards for filing by fax, and

• eliminate the filing of routine discovery documents with the presiding ALJ.

RECENT SIGNIFICANT DECISIONS

ADVERSE ACTION; BLACKLISTING; MOTIVE

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the Secretary concluded that the placement of the Complainant on a "denied access list" was not "blacklisting" within the meaning of the ERA without evidence of improper motivation.

ADVERSE ACTION; POOR REFERENCE

In Gaballa v. The Atlantic Group, 94-ERA-9 (ALJ May 16, 1995), the ALJ concluded that the rationale of Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), to the effect that the giving of a poor reference need not lead to loss of employment opportunities to be prohibited under the STAA, is readily extended to the ERA. In Gaballa, the Complainant had employed a reference checking agency to determine what kind of reference he would get from the Respondent.

CIRCUMSTANTIAL EVIDENCE; CLEAR WRITTEN POLICY

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Secretary took into consideration in regard to retaliatory motive that the Respondent had a clear written policy that its computers could only be used for nonbusiness purposes after regular business hours and only for non-profit-making situations. In Collins, the Complainant admitted using his computer for a private business.

CIRCUMSTANTIAL EVIDENCE; FAILURE TO FOLLOW ESTABLISHED CHANNELS

An employee's failure to follow established channels for voicing concerns and an unreasonable manner of complaining are relevant to the respondent's motivation and may remove statutory protection. Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995).

CONTINUING VIOLATION THEORY; ACT WITHIN LIMITATIONS PERIOD NEED NOT BE "LEGALLY SUFFICIENT" BUT MUST BE AN ACT OF DISCRIMINATION

In Moody v. Tennessee Valley Authority, 91-ERA-40 and 92-ERA-49 (Sec'y Apr. 26, 1995), the Secretary noted that in Title VII cases, the discriminatory act occurring within the limitations period need not be a "legally sufficient" claim itself to invoke the continuing violation theory, but it must be an act of discrimination. In the case before the Department, there was no adverse action, and thus no incident of discrimination within the limitations period. Thus, the continuing violation theory did not apply to make the incidents outside the limitations period cognizable ERA complaints.

DAMAGES; AWARD FOR PERMANENT PSYCHOLOGICAL DISORDER

In Gaballa v. The Atlantic Group, 94-ERA-9 (ALJ May 16, 1995), the ALJ recommended an award of $75,000 in compensatory damages for emotional distress where there was unrefuted testimony that the Complainant developed a permanent psychological disorder resulting from the discrimination.

DECISION AND ORDER AS FINAL OR RECOMMENDED; REMAND FOR INVESTIGATION

In Odom v. Anchor Lithkemko/International Paper, 95-WPC-2 (ALJ Apr. 28, 1995), the ALJ found that the period for filing was equitably tolled, and remanded the case to the Wage and Hour Division for an investigation. The ALJ concluded that his order was not dispositive on the merits, and being interlocutory in nature, was not subject to transmittal to the Secretary for a final order pursuant to 29 C.F.R. § 24.6.

GRADUAL OR PROGRESSIVE DISCIPLINARY POLICY

In Clifton v. United Parcel Service, 94-STA-16 (Sec'y May 9, 1995), evidence that the Respondent's practice was to use a gradual disciplinary process not used in the Complainant's case was found to indicate that the articulated reason for discharging the Complainant was at least partially pretextual, which caused the analysis to proceed to the dual or mixed motive stage.

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), however, the Secretary found that, despite the existence of a progressive discipline policy, there was no evidence that there was a failure to apply a progressive discipline for illicit reasons. The Secretary quoted with approval the ALJ's observation that the Respondent "was entitled to fire the Complainants for good reasons, bad reasons, or no reason, 'as long as it's not a discriminatory reason.'" Slip op. at 12-13, quoting transcript at 525. The Secretary also took into consideration that the Complainants' activities were of a type that could discredit or embarrass the company and that one of the Complainants had not been entirely forthcoming in discussing his outside activities when confronted prior to the discharge.

NONDISCRIMINATORY REASON FOR ADVERSE ACTION; ILLEGAL OR UNREASONABLE PROTEST ACTIVITIES

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the Secretary wrote:

That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints. . . . Nor is an otherwise protected employee automatically absolved from abusing his status and overstepping the defensible bounds of conduct -- even when provoked. . . . Furthermore, certain forms of "opposition" conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent, and nondiscriminatory basis for adverse action. . . .

PROTECTED ACTIVITY; DERIVATIVE COMPLAINT

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), one Complainant's theory of coverage was that, although she had not engaged in any protected activity, the Respondent discharged her and another co-worker in an effort to obscure its motives. Since the Secretary found that the other Complainant was not retaliated against for protected activity, he also dismissed the derivative coverage theory. This case presents an interesting question of whether a person who suffers an adverse employment action as the result of the protected activity of another person is a covered whistleblower.

In Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), a prior Secretary of Labor rejected a derivative coverage theory. In Hollis, however, the Complainant refused a driving assignment because he was going to help his son-in-law in having a truck inspected at a rest stop. He did not tell the Respondent why he was refusing the assignment. The STAA requires a Complainant to seek and be unable to obtain correction of an unsafe condition, which is not an element of the nuclear and environmental whistleblower statutory provisions.

PROTECTED ACTIVITY; DISCOMFORT IN DRIVING POSITION

In Ass't Sec'y & Beard v. Apar Brokerage, 94-STA-39 (Sec'y May 3, 1995), the Complainant established that a lack of legroom caused him discomfort while driving, but failed to establish that the discomfort constituted a reasonable fear of an unsafe condition sufficient to make his refusal to drive protected activity under 49 U.S.C. § 31105(a)(1)(B)(ii).

PROTECTED ACTIVITY; MERE CONTACT WITH NRC INVESTIGATOR PROTECTED

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Secretary found that Complainant's contact with a NRC investigator was protected activity, even though the record was not clear as to why the investigator had interviewed the Complainant.

PROTECTED ACTIVITY; TERMINATED EMPLOYEE'S COMPLAINT

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the ALJ had recommended that a terminated employee not be found to have engaged in protected activity when he demanded a meeting with a Vice-President for the Respondent because this was not a recognized channel for former or terminated employees to express concerns. The Secretary held that it was sufficient that the complaints were directed to the Respondent's management, writing that "[a] terminated employee might be viewed by management as an even more serious threat to cause trouble or expose wrongdoing, and the manager could still retaliate by interfering with prospective employment." Slip op. at 3 (footnote and citation omitted).