In Santamaria v. U.S. Environmental Protection Agency, ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the ALJ found that the Complainant did not engage in protected activity and therefore he did not have "jurisdiction" over the complaint. The ARB clarified that the issue was one of coverage – not jurisdiction.
XII A Definition; protected
activity
A complaint or charge of employer retaliation because of safety
and quality control activities is protected activity under the
ERA. McCuistion v. Tennessee Valley Auth., 89-ERA-
6 (Sec'y Nov. 13, 1991).
[Nuclear and Environmental Whistleblower Digest XII A]
EXTENT TO WHICH DECISION MAKER MUST DETERMINE PROTECTED ACTIVITY UNDER VARIOUS STATUTES PLEADED
In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), once the ARB determined that the Complainant engaged in protected activity under the SWDA, it found it unnecessary to determine whether other environmental whistleblower statutes pleaded by the Complainant applied.
[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; MUST IMPLICATE SAFETY DEFINITIVELY AND SPECIFICALLY; REPORT OF BLACKMAIL ATTEMPT TO CLEAR WAY FOR HONEST REPORT TO NRC CONCERNING DEFICIENCIES IN CLEARANCES FOR AUTHORIZED ACCESS IMPLICATES SAFETY
To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically. American Nuclear Res., Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). In Kester v. Carolina Power & Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003), Complainant had reported to company officials an attempt by his supervisor to blackmail him to take the blame for falsification of authorized access clearances in order to clear the way for Complainant to report honestly to an NRC investigator about the events without fear of reprisal by his supervisor. The ARB held that this implicated safety and was protected activity because Complainant's department was the first line of defense in protecting Respondent's nuclear plants from persons lacking authorized access.
[Nuclear & Environmental Whistleblower Digest XII A] PROTECTED ACTIVITY; ADJUDICATOR NEED NOT RULE ON WHETHER EACH DOCUMENT PRODUCED BY COMPLAINANT INVOLVED PROTECTED ACTIVITY WHERE EVIDENCE PRESENTED MADE IT SAFE TO ASSUME THAT COMPLAINANT HAD ENGAGED IN SUCH ACTIVITY
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.
The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.
[Nuclear & Environmental Whistleblower Digest XII A] PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id., USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
[Nuclear & Environmental Digest XII A]
PROTECTED ACTIVITY; MUST BE IDENTIFIED BEFORE CONSIDERATION OF
WHETHER ADVERSE ACTION WAS TAKEN IN RETALIATION
In view of the role of protected activities in the retaliatory intent analysis,
identification of the activities that were engaged in that are statutorily protected is a
crucial first step. The chronology of protected activities and personnel actions is also
important, as temporal proximity between protected activity and the decision to take an
adverse action is relevant to the determination whether such action was motivated by
retaliatory intent. ... Thus, as is hereinafter more fully discussed, the failure of the ALJ to
first identify which of Melendez' activities qualified for protection makes it impossible to
determine which of Exxon's actions taken against Melendez were taken for wholly
legitimate reasons rather than in retaliation for Melendez having engaged in such activity.
Slip op. at 12 (citation omitted). A concurring opinion by the Chair of the ARB clarified
that "[e]ven in cases in which the ALJ or this Board ultimately conclude that no unlawful
discrimination took place, the preliminary step of evaluating the protected or non-protected status
of the actions that prompted the complaint is procedurally useful, helping to focus the
discrimination inquiry." Slip op. at 43-44. The concurrence, however, also observed in a
footnote that "[o]f course, it generally would not be necessary to explore the 'protected
activity' question in cases where no adverse action has occurred. However, it is undisputed in this
case that Melendez suffered an adverse action, i.e., he was discharged." Slip op. at
44 n.55.
[Nuclear & Environmental Digest XII A]
NEXUS BETWEEN PROTECTED ACTIVITY AND OBJECTIVE OR PURPOSE OF
THE ERA
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5
(ALJ Oct. 2, 2000), the ALJ cited Van Beck v. Daniel
Construction Co., 1986-ERA-26 (Sec'y Aug. 3, 1998) at 3, for the proposition that
"in order for jurisdiction to attach under §5851, a nexus must be established between
the alleged protected activity and the objective or purpose of the ERA." The ALJ
concluded that an investigation to rule covered materials under the Atomic Energy Act
"in" or "out" as a cause of elevated levels of leukemia in an area of a
school provided sufficient nexus to be covered.
[N/E Digest XII A]
PROTECTED ACTIVITY AS CONTRIBUTING FACTOR TO ADVERSE
EMPLOYMENT ACTION
Under the ERA whistleblower provision, if a complainant successfully proves that his or
her protected activity was a "contributing factor" to the adverse action, the
respondent must then demonstrate "by clear and convincing evidence that it would have
taken the same unfavorable personnel action in the absence of such behavior." 42 U.S.C.
§5851(b)(3)(D). This is a lesser standard than the "significant,"
"motivating," "substantial," or "predominant" factor
standard
sometimes articulated in case law under statutes prohibiting discrimination. See
Procedures
for the Handling of Discrimination Complaints Under Federal Employee Protection
Statutes, 63 Fed. Reg. 6614, 6615 (1998) (to be codified at 29 C.F.R.
§24.5(b)(2)).
PROTECTED ACTIVITY; UNDERLYING NUCLEAR SAFETY CONCERN
[N/E Digest XII A]
Where scaffolding at a nuclear power facility is subject
to specifications set by OSHA and standards imposed by the
NRC for seismic activity, and the Complainant voiced
concerns extending to the NRC standards, the Complainant's
complaint was cognizable under the ERA whistleblower
provision as it involved nuclear safety. Smith v.
Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996).
XII A Theory of protection linked to other employee's
protected activity
In Collins v. Florida Power Corp., 91-ERA-47 and 49
(Sec'y May 15, 1995), there
was no evidence that one Complainant had engaged in protected
activity under the ERA. Her theory
of coverage was that the Respondent discharged her and another
co-worker with whom she had been
involved in running an unauthorized private business while on
Respondent's facility, in an effort to
obscure its motives. The Secretary had already found that the
other Complainant was not retaliated
against for protected activity, and thus also dismissed the
linked retaliatory theory.
[Editor's note: Since the Secretary found no
retaliatory discharge, he did not need to
address directly the second Complainant's theory. In a STAA
case, Hollis v. Double DD
Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), the
Secretary rejected a theory of the
Complainant's discharge being derivative of another Complainant's
protected activity.
Hollis may be distinguishable, however, because the
STAA requires a Complainant to
seek and be unable to obtain correction of an unsafe condition.
In Hollis, the
Complainant refused a driving assignment because he was going to
help his son-in-law to have a truck
inspected at a rest stop. He did not tell the Respondent why he
was refusing the assignment.]
XII.A. Relation to environmental or nuclear
safety
In Tyndall v. United States Environmental Protection
Agency, 93-CAA-6 (ALJ Oct. 12, 1994), the ALJ recommended
dismissal of the complaint because Complainant did not engage in
protected activity under the CAA. The Complainant was a special
agent of the EPA's Office of Inspector General ("OIG"),
who contended that he engaged in protected whistleblower activity
by reporting alleged official misconduct, and alleged wrongful
interference by EPA-OIG management during an official
investigation assigned to Complainant. Complainant argued that
he was "on the trail of a major contracting fraud and
organizational conflict of interest involving selection of and
doing business with a contractor doing computer modelling and
environmental research for EPA. . . ."
The ALJ concluded that Complainant's allegations afforded no
basis for CAA relief because such allegations are not related to
environmental safety or violations of the CAA. The only
connection between the investigation and the CAA is the fact that
the contract under investigation had to do with acid rain
research, too tenuous a connection to establish coverage.
XII.A. Concerns "touching on" the
environment
Concerns that "touch on" the environment can be
protected activity.
Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994).
XII.A. Contact after adverse action
A complaint filed with the NRC only after the adverse employment
action is not protected activity. Kahn v. Commonwealth
Edison Co., 92-ERA-58 (Sec'y Oct. 3, 1994).
XII.A. Respondent's awareness
Where it was undisputed that Complainant filed complaints with
the Nuclear Regulatory Commission, Texas Utilities Electric's
Corporate Security, and the Sommerville County Sheriff only after
his lay off, he failed to establish that he engaged in protected
activity prior to the challenged adverse action.
Moreover, there was no evidence indicating that Respondent was
aware of Complainant's concerns at the time the lay off decision
was made.
Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7, 1994).
XII a Protection for spouse of whistleblower
In Leveille v. New York Air National Guard,
94-TSC-3 and 4 (ALJ Jan. 19, 1995), the
ALJ accepted the theory of a Complainant that he should be
considered to have engaged in protected
activity because of his spouse's activities. Marshall v.
Georgia Southern College, 489 F. Supp.
1322 (M.D. Ga. 1980), aff'd, 765 F.2d xx (11th Cir. 1985).
Nonetheless, the ALJ found no
evidence that the Complainant had been retaliated against because
of his spouse's activities on a timely
filed complaint.
Reporting safety and environmental concerns under the CERCLA and
the SWDA internally to one's employer is protected activity.
Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994).
[N/E Digest XII B 1 a]
INTERNAL COMPLAINTS; 1992 AMENDMENTS TO ERA
A legal dispute whether purely internal complaints to management constitutes
protected
activity under the ERA no longer exists because the 1992 amendments to the ERA
explicitly
include an employee's notification to his or her employer of an alleged
violation of the ERA.
See Section 2909(a) of the Comprehensive National Energy Policy Act of
1992, Pub. L.
No. 102-486, 106 Stat. 2776, 3123.
Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar.
31,
1996).
XII B 1 a Internal safety complaints as protected
activity
The Nuclear Regulatory Commission takes the position that
internal safety complaints are within the scope of
"protected activities" under 10 CFR § 50.7.
Duke Power Co. (Catawba Nuclear Station, Units 1 and
2), 51 Fed Reg 25127 (docket nos. 50-413, 50-414, EA 84-
93) (order imposing civil money penalty, July 10, 1986), adopting
the view of 9th Circuit, Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) and the
10th Circuit, Kansas Gas and Electric Co. v. Brock, 780
F.2d 1505 (10th Cir. 1985), and rejecting the view of the 5th
Circuit, Brown & Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984).
Section 5851 protects quality control inspectors from retaliation
based on internal safety and quality control complaints. The
whistleblower provision of the ERA has a broad, remedial purpose
of protecting workers from retaliation based on their concerns
for safety and quality. Quality control inspectors play a
crucial role in NRC's regulatory scheme. Every action by quality
control inspectors occurs "in an NRC proceeding"
because of their duty to enforce NRC regulations. This ruling
does not require companies to retain "abrasive, insolent,
and arrogant" quality control inspectors if they comply
technically with the requirements of the job. The ruling simply
forbids discrimination based on competent and aggressive
inspection work. In other words, contractors regulated by section
5851 may not discharge quality control inspectors because they do
their jobs too well. Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).
[N/E Digest XII B 1 b]
PROTECTED ACTIVITY; INTERNAL COMPLAINTS
In United States v. Dr. Warren E. Smith Community Mental Health/Mental
Retardation and Substance Abuse Centers, 1997 U.S. Dist. LEXIS 9424
(E.D. Pa.
1997), a qui tam action under the False Claims Act (FCA), 31 U.S.C.
3730(b)(1), the court
relied principally on Passaic Valley Sewerage Commr's v. United States
Dept. of Labor,
992 F.2d 474 (3d Cir. 1993), which concluded that internal complaints were
protected activity
under the Federal Water Pollution Control Act (FWPCA)'s whistleblower
provision, in
interpreting the employee protection provision of the FCA. The court
concluded that Congress
had considered other whistleblower provisions such as that found in the FWPCA
when enacting
the FCA whistleblower provision.
XII B 1 b PROTECTED ACTIVITY; INTERNAL COMPLAINT DEFINED
An internal complaint is one lodged with a supervisor of the
company itself. An external complaint is one lodged with an
outside agency, such as the NRC. Kahn v. United States
Secy. of Labor, 1995 U.S. App. LEXIS 24111 (7th Cir.
1995) (recognizing that other circuits and the Secretary had
treated pre-1992 ERA complaints as protected activity).
XII B 1 b Intracorporate complaint is protected activity
In Passaic Valley Sewerage Commissioners v. United States
Dept. of Labor, 992 F.2d 474 (3rd Cir. 1993), the court
held that the employee protection provision of the Clean Water
Act, 33 U.S.C. § 1367(a), extends to wholly intracorporate
complaints (pursuit of internal remedies and voluntary
remediation, rather than automatic start of formal investigations
and litigation, is to be encouraged).
XII B 1 b Internal complaints
Reviewing the statutory language of section 5851 of the ERA, its
legislative history and that of the employee protection
provisions of the Acts upon which is was modeled (CAA, FWPCA,
NLMA, FMSA) and the implementing regulations of both DOL and NRC,
the court in Kansas Gas & Electric Co. v.
Brock, 780 F.2d 1505 (10th Cir. 1985), cert.
denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311
(1986), held that internal complaints are protected under section
5851.
XII B 1 b. Summary of circuits recognizing internal
complaints as protected activity
In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3
(ALJ Nov. 29, 1993) (order denying respondent's motion for
summary decision), Respondent contended in a motion for summary
decision that internal safety complaints are not covered by the
whistleblower statutes, citing Brown & Root v.
Donovan, 747 F.2d 1029 (5th Cir. 1984). The ALJ noted
that
Of the United States Courts of Appeal that have
addressed this issue, only the Fifth Circuit has held that
internal complaints are not protected activity, whereas the
Tenth, Ninth and Second Circuits have held that internal
safety complaints are protected whistleblower activity.
Kansas Gas and Elec. Co. v. Brock, 478 U.S. 1011,
1011-12; 106 S. Ct. 3311, 331-12 (1986)(White, J. dissenting
to denial of certiorari). In addition, while not
specifically addressing the issue of internal safety
complaints, the U.S. Court of Appeals for the Eighth Circuit
upheld the Secretary of Labor's determination that an
employee who "threatened to bring various safety and
quality-control complaints to the attention of the Nuclear
Regulatory Commission, and had raised these kinds of
concerns with his supervisors," had engaged in
protected activity. Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989). Furthermore, the Secretary of Labor has
consistently held that internal safety complaints are
protected activity, Keith E. Conaway, No. 91-SWD-4
(Sec'y Jan. 5, 1993). See also Chilton D.
Williams, No. 88-SWD-3 (Sec'y June 24, 1992); Wagoner
v. Technical Products, Inc., No. 87-TSC-4 (Sec'y Nov.
20, 1990).
The ALJ concluded that internal complaints are cognizable in the
Eighth Circuit.
XII B 1 b Internal safety reports
An employee who is retaliated against for filing internal reports
concerning situations of nuclear regulatory laws has recourse
under the ERA. Jones v. Tennessee Valley
Authority, 1991 US App LEXIS 25777 (6th Cir. 1991) (but
noting split between 5th and 10th circuits).
XII B 1 b Internal reports as protected activity
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505
(10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d
724, 106 S. Ct. 3311 (1986).
The Secretary of Labor interpreted Section 5851 of the ERA to
protect quality control inspectors from retaliation based on
internal safety and quality control complaints, extending
coverage of the ERA to internal activities. KG&E contends
that if the statute is read to include internal complaints then a
fundamental facet of the employer/employee relationship is
infringed. The Court of Appeals examined the pertinent language
of the statute and the construction given to Section 5851 by the
Mackowiak court. It found that the phrase
"proceeding or any other action" does not require a
formal proceeding in order to invoke the protection of the Act.
Therefore, purely internal complaints are covered by the ERA.
The Court of Appeals recognized the different result reached in
Brown and Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984).
In its view, the construction of the ERA there was incorrect
because it takes no notice of the agency regulations, tries to
liken the term "action" as synonymous with
"proceeding," contends that such employment
determinations are outside the competence of the Secretary of
Labor because matters concerning nuclear safety are exclusively
involved, and discovers nothing in the legislative history to
support a broad construction of Section 5851.
XII B 1 b Internal Complaints
In Passaic Valley Sewerage Commissioners v. United
States Dept. of Labor, 992 F.2d 474 (3rd Cir. 1993), the
Complainant was employed by the Respondent, a water treatment
facility, as as the head of a laboratory that analyzed water
samples pursuant to an ad valorem user charge system in which the
users of the facility took their own water samples. Over a period
of years, the Complainant reported extensively to PVSC officials
that the user charge system violated the FWCPA. The Complainant
was subsequently terminated from his employment with PVSC.
The Court of Appeals for the Third Circuit held that the
"statute's purpose and legislative history allow, and even
necessitate, extension of the term 'proceeding' to intracorporate
complaints." Accordingly, the Third Circuit affirmed the
findings of the Secretary that the Complainant had engaged in a
protected activity.
XII B 1 b 11th Circuit recognizes internal complaints as
protected activity in ERA
proceedings
In Bechtel Construction Co. v. Secretary of Labor,
No. 94-4067 (11th Cir. Apr. 20, 1995)
(available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44),
the Eleventh Circuit joined the
majority of other circuits holding that internal complaints may
constitute protected activity under the ERA
whistleblower provision as it existed prior to the 1992
amendments. The 1992
amendments explicitly recognize internal complaints as protected
activity.
The court found it appropriate to defer to the Secretary's
construction of the statute pursuant to
Chevron v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), noting that the
Secretary had construed the legislative history, that it was
appropriate to give a broad construction to
nondiscrimination provisions in federal labor laws, and that it
found the analysis in Brown &
Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984),
wanting.
Brown & Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984).
Section 5851(a)(3) cannot be construed to protect the filing of
intracorporate quality control reports which are purely internal
quality control reports. Absent contact with an organ of
government, the employee cannot make out a claim under Section
5851. The basic structure of the ERA is not designed to modify
the employee-employer relationship, but rather to rely on
corporate officers to manage the corporation in compliance with
their obligations to ensure public safety.
[Nuclear and Environmental Whistleblower Digest XII B 1 c]
PROTECTED ACTIVITY; INTERNAL COMPLAINT; 5TH CIRCUIT CONCEDES THAT BROWN & ROOT WAS INCORRECTLY DECIDED
In Willy v. Administrative Review Board, USDOL, No. 04-60347 (6th Cir. Aug. 24, 2005) (case below ARB No. 97-107, 1985-CAA-1), the Fifth Circuit in a footnote conceded "Congress clarified by statute [i.e., the 1992 amendments to the ERA] that Brown & Root[, 747 F.2d 1029 (5th Cir. 1984),] was incorrect in holding that complaints to employers were not protected under 42 U.S.C. § 5851. Slip op. at n.9. In other words, Congress clarified that internal complaints are protected activity under the whistleblower provision of the ERA.
[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINT AS PROTECTED ACTIVITY IN FIFTH CIRCUIT; PRE-1992
AMENDMENT ACTIVITY, BUT POST-AMENDMENT FILING OF COMPLAINT
In Paynes v. Gulf States Utilities
Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the
Respondent argued that Complainant did not engage in protected activity because the filing of internal
complaints was not deemed protected under the ERA in the Fifth Circuit where this matter arose.
See Brown and Root v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984). The ARB
rejected this argument because the ERA was amended to specifically include the filing of internal
complaints by the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106
Stat. 2776 (Oct. 24, 1992). Complainant's internal complaint was made prior to the enactment of the
1992 amendments, but he did not file his ERA complaint until after the effective date of the amendment
of the ERA.
[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINTS UNDER PRE-1992 AMENDMENTS ERA
In Macktal v. U.S. Dept. of
Labor, No. 98-60123 (5th Cir. Apr. 13,
1999) (case below 1986-ERA-23), the court declined to revisit the 5th Circuit decisions in
Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) and Ebasco Constructors,
Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993), which held that purely internal
complaints were not protected by the ERA whistleblower provision as it existed prior to the 1992
amendments to the ERA.
[Nuclear & Environmental Digest XII B 1 c]
WRITTEN EXPRESSION OF INTENT TO FILE COMPLAINT WITH NRC
CONSTITUTED PROTECTED ACTIVITY EVEN UNDER PRE-1992 AMENDMENTS ERA
In Macktal v. U.S. Dept. of
Labor, No. 98-60123 (5th Cir. Apr. 13,
1999) (case below 1986-ERA-23), the court held that a written expression of intent to file a
complaint with the NRC constituted protected activity under Section 210 of the ERA as it existed
prior to the 1992 amendments (the whistleblower provision is now found in Section 211 of the
ERA).
XII. B. 1. c. Fifth Circuit's position on internal
complaints
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), a case arising in the Fifth Circuit, Respondent fired
Complainant as one of its in-house attorneys for failing to
report a telephone call to a state agency and lying about it when
asked by his supervisor; the ALJ found after a hearing that
Respondent fired Complainant both because of his lie about the
phone call and because of Complainant's internal memorandum on
Respondent's violations of the environmental laws.
Respondent raised the argument that Complainant's internal
complaints of violations of the environmental laws are not
protected activities under the Fifth Circuit's decision in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
The Secretary noted that this issue had already been decided in
an earlier decision in the case, Willy v. The Coastal
Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8.
The Secretary also held that Brown & Root is
applicable only to the ERA and did not purport to interpret the
environmental whistleblower laws at issue in this case.
[Editor's note: The 5th Circuit noted the Secretary's
nonacquiescence to Brown & Root with apparent
disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13
(5th Cir. 1988), although the issue was not squarely addressed in
that decision.]
XII. B. 1. c. Fifth Circuit's position on internal complaints
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), a case arising in the Fifth Circuit, Respondent fired
Complainant as one of its in-house attorneys for failing to
report a telephone call to a state agency and lying about it when
asked by his supervisor; the ALJ found after a hearing that
Respondent fired Complainant both because of his lie about the
phone call and because of Complainant's internal memorandum on
Respondent's violations of the environmental laws.
Respondent raised the argument that Complainant's internal
complaints of violations of the environmental laws are not
protected activities under the Fifth Circuit's decision in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
The Secretary noted that this issue had already been decided in
an earlier decision in the case, Willy v. The Coastal
Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8.
The Secretary also held that Brown & Root is
applicable only to the ERA and did not purport to interpret the
environmental whistleblower laws at issue in this case.
[Editor's note: The 5th Circuit noted the Secretary's
nonacquiescence to Brown & Root with apparent
disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13
(5th Cir. 1988), although the issue was not squarely addressed in
that decision.]
XII B 1 c Protected activity: Intracorporate
quality control report
The filing of an intracorporate quality control report is not
protected activity under 42 USC § 5851(a)(3). Absent the
employee's contact or involvement with a competent organ of
government, he or she cannot make out a claim under section 5851.
In making this finding, the court found no support in the
statutory language for inclusion of internal reports as
whistleblowing activity, concluded that DOL was not entitled to
deference in the interpretation of the statute, and found no
persuasive support in the legislative history for including
internal reports as protected activity. In short, the court
found that the structure of the ERA indicates that section 5851
is designed to protect "whistleblowers" who provide
information to governmental entities, not to the employer
corporation. If a corporate officer fails to act on an internal
report critical of safety conditions, he is liable under section
5846. Brown & Root, Inc. v. Donovan, 747 F.2d
1029 (5th Cir. 1984).
XII B 1 c Split in circuits
Brown & Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984).
This case created a split in the circuits on the issue of whether
the filing of purely internal complaints constitutes protected
activity, specifically with the Ninth Circuit's holding in
Mackowiak v. University, 735 F.2d 1159 (9th Cir. 1984),
that internal quality control reports are protected activity.
According to the Fifth Circuit, Mackowiak is predicated
primarily on what the Ninth Circuit perceived as similarities
between the provisions of the Mine Safety Act (MSA) and Section
5851, although MSA contains language expressly protecting
internal filings and Section 5851 does not. The court also
specifically rejects the following rationale in Mackowiak
for extending protection: "In a real sense, every action by
quality control inspectors occurs 'in an NRC proceeding,' because
of their duty to enforce NRC regulations." The Fifth Circuit
Court of Appeals does not find any support for this theory in the
language, legislative history, or structure of the ERA. Nor does
the court see a principled way to "contain" the
consequences of making every action by nuclear corporations an
occurrence in an NRC proceeding, because of their duty to enforce
the regulations.
In the Secretary's opinion, the CAA's language is broad enough to
protect internal employee complaints, and to prohibit employer
discrimination because of such complaints.
After reviewing similar decisions involving similar employee
protection provisions of the ERA, the Mine Safety Act, and the
Fair Labor Standards Act, and the legislative history of the CAA,
the Secretary enumerated the policy reasons for protecting
internal complaints:
there is no principled reason for denying protection to
internal employee complaints; employees who have the
courtesy to take their concerns first to their
employers to allow a chance to correct any violations
without the need for governmental intervention have as
much need for protection as do employees who first go
to the government with their concerns.
the scope of the prohibited employer discrimination
should not be narrowed by allowing discrimination
against employees whose complaints are internal; a
complainant may be silenced if an employer fears that
the complainant will go to the government.
both employers and the government benefit from
protecting internal complaints. Employers gain from
being given an early opportunity to correct problems
without government intervention, and the government is
relieved from the need to commit its limited resources
to investigating and resolving problems that could be
informally corrected.
Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1
(Sec'y Apr. 27, 1987) (order of remand).
[Nuclear & Environmental Digest XII B 1 d i]
PROTECTED ACTIVITY; FIFTH CIRCUIT
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB noted in a footnote that the holding
of Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), that internal
complaints were not protected by the employee protection provision of the Energy
Reorganization Act, 42 U.S.C. §5851 (1982), then in effect, has not been extended by the
Secretary of Labor beyond cases that arise within the Fifth Circuit and which are subject to the
ERA provisions in effect prior to October 24, 1992, when ERA amendments providing express
coverage of internal complaints took effect. The member thus found that in the present case,
arising under the CAA and TSCA, the view that internal complaints are covered would be
applied even though the case arose in the Fifth Circuit.
INTERNAL COMPLAINTS; INFORMALITY OF COMPLAINT
[N/E Digest XII B 1 d i and XII C 1]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board found that the ALJ correctly recognized that internal
complaints were protected under the whistleblower provisions of
the pertinent environmental statutes. The Board, however, stated
that it was reluctant to accept the ALJ's decision insofar as the
ALJ at points suggested that he was reluctant to find
Complainant's alleged complaints to be protected activity because
they were both internal and informal.
The Board observed that an informal and internal safety
complaint may constitute protected activity. Slip op. at 5,
citing, Nichols v. Bechtel Construction, Inc., 87-ERA-44,
slip op. at 10 (Sec'y Oct. 26, 1992) (employee's verbal
questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric
Corp., 86-ERA-39, slip op. at 1, 3 (Sec'y Oct. 30, 1991)
(employee's complaints to team leader protected).
The Board emphasized that "[i]nternal safety complaints
are covered under the environmental whistleblower statutes in the
Eighth Circuit, the Fifth Circuit and every other circuit. See
Amendments to the ERA in the Comprehensive National Energy Policy
Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776."
The Board noted that "[t]he only current exception to this
rule is for cases filed in the Fifth Circuit under the Energy
Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §
5851 (1988), prior to October 24, 1992."
XII B 1 d i Internal complaints are covered
Internal complaints are protected activities under the ERA.
Dysert v. Westinghouse Electric Corp., 86-ERA-39
(Sec'y Oct. 30, 1991).
XII B 1 d i Internal complaint as protected activity
In Helmstetter v. Pacific Gas & Electric Co.,
91-TSC-1 (Sec'y Jan. 13, 1993), the ALJ erred in concluding that
the complainant's internal complaint to the respondent's
environmental staff was not tantamount to participating in a
proceeding under the TSC or SWD and thus was not protected.
Reporting violations of environmental statutes internally to
one's employer is protected activity under whistleblower
provisions. Guttman v. Passaic Valley Sewerage Comm'rs,
85-WPC-2 (Sec'y Mar. 13, 1992, slip op. at 11, appeal
docketed, No. 92-3261 (3d Cir. May 13, 1992); Wagoner v.
Technical Products, Inc.,87-TSC-4 (Sec'y Nov. 20, 1990), slip
op. at 8-12; Willy v. The Coastal Corp., 85-CAA-1 (Sec'y
June 4, 1987), slip op. at 3.
XII B 1 d i. Internal complaints are protected
activity
It is protected conduct for an employee to file internal quality
control reports and to make internal complaints regarding safety
or quality problems. Bassett v. Niagara Mohawk Power
Corp., 85-ERA-34 (Sec'y Sept. 28, 1993).
XII B 1 d i Internal Complaints
In Guttman v. Passaic Valley Sewerage
Commissioners, 85-WPC-2 (Sec'y Mar. 13, 1992), the
Complainant was employed by the Respondent, a water treatment
facility, as as the head of a laboratory that analyzed water
samples pursuant to an ad valorem user charge system in
which the users of the facility took their own water samples.
Over a period of years, the Complainant reported extensively to
PVSC officials that the user charge system violated the FWCPA.
The Complainant was subsequently terminated from his employment
with PVSC.
The Secretary held that the Complainant's internal complaints
were protected activity since the paramount purpose of the
whistleblower provision of the FWCPA is the protection of
employees. This purpose would be frustrated by failing to
protect employees who report violations internally to their
employers.
[Editor's note: Guttman was affirmed: 992 F.2d
474].
XII B 1 d i Internal complaint under SWDA
The Complainant's internal safety complaints to his superiors
about potential violations of the SWDA and other safety concerns
constitute protected activity under the Solid Waste Disposal Act,
as amended, 42 U.S.C. § 6971 (1988) and applicable case law.
See Williams v. TIW Fabrication & Machining, Inc., 88-
SWD-3 (Sec'y June 24, 1992); Wagoner v. Technical Products,
Inc., 87-TSC-4 (Sec'y Nov. 20, 1990). The Secretary has
consistently held that reporting safety and quality problems
internally to one's employer is a protected activity under the
SWDA and other environmental statutes enumerated in 20 C.F.R.
§ 24.1. Citations omitted.
The Secretary continues to adhere to his position that it is
protected conduct for an employee to file internal quality
control reports and to make internal complaints regarding safety
or quality problems. Bassett v. Niagara Mohawk Power
Co., 86-ERA-2 (Sec'y Sept. 28, 1993).
Although finding that the complainant made an external complaint
when he reported an oil spill to the Coast Guard, the Secretary
noted that she believes that reporting violations internally is a
protected activity, and made an alternative finding that the
complainant engaged in protected activity when he made an
internal complaint to personnel employed by a waste disposal
company which contracted with respondent to provide a crew boat.
The Secretary noted that her reasons for refusing to follow
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984), were more fully stated in Goldstein v. Ebasco
Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op.
at 5-10, appeal docketed, No. 92-4576 (5th Cir. June 1,
1992), and Willy v. The Coastal Corp., 85-CAA-1 (Sec'y
June 4, 1987), slip op. at 3-4, 8.
Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
[N/E Digest XII B 1 d ii]
INTERNAL COMPLAINTS; PRE-1992 COMPLAINT ARISING IN FIFTH CIRCUIT;
COMPLAINANT'S THREAT TO GO TO GOVERNMENT OFFICIALS; REFUSAL TO
WORK
The ARB will follow the decision of Brown & Root, Inc. v. Donovan, 747
F.2d
1029 (5th Cir. 1984), in an ERA case, where the case arose in the Fifth
Circuit prior to the 1992
amendments to the ERA that provided explicit protection for internal safety or
health complaints.
Brown & Root states a minority opinion that the ERA (prior to the 1992
amendments)
did not protect internal complaints. See Macktal v.
Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998).
In Macktal, the ALJ concluded that Complainant engaged in
protected
activity under Brown & Root, because he indicated on his last day of
employment that
he would file complaints with government agencies, including the NRC. The ARB
concluded
that Brown & Root did not even permit these kinds of actions by a
Complainant, even
though the pre-1992 ERA protected an employee who is about to commence a
proceeding.
Complainant also alleged that his request to be relieved of his duties was
protected
activity; the ARB, however, found that refusal to work is simply an internal
complaint
subcategory.
PROTECTED ACTIVITY; INTERNAL COMPLAINTS; PRE-1992 ERA
AMENDMENT COMPLAINTS IN FIFTH CIRCUIT
[N/E Digest XII B 1 d ii]
In pre-1992 amendment ERA cases arising in the Fifth
Circuit, the Secretary acquiesces to the holding in Brown
and Root, Inc. v. Donovan, 747 F.2d 1029, 1035-36 (5th
Cir. 1984), that purely internal complaints are not
protected activity under the ERA.
XII B 1 d ii Internal complaint covered
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y July 9, 1986), the Secretary held that allegations of
being "passed over" and "relegated to the bottom
of the organizational chart" and denial of temporary
handicapped parking privileges in retaliation for the
Complainant's performing his assigned tasks and for identifying
deficiencies in Respondent's quality assurance programs, states a
cause of action.
The Secretary declined to apply Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984). See Richter v.
Baldwin Associates, 84-ERA-9 to 12 (Sec'y Mar. 12, 1986)
(prior contact with a government agency is not a prerequisite to
establishing a protected activity).
The instant case arose in the Second Circuit. The ALJ relied on
a distinction made in Brown & Root that the issue of
protected activity was not at issue in the Second Circuit case of
Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir.
1982). The Secretary, however, found that since the only
activity engaged in Consolidated Edison was internal
reporting the Second Circuit could not be attributed with failing
to consider whether purely internal reporting of safety
complaints falls within the ambit of section 5851 of the ERA.
XII B 1 d ii Secretary's refusal to follow Brown
& Root
In Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir.
1988), the court noted that the Secretary had "held" in
a concurrent administrative proceeding before the Department of
Labor that Brown & Root was incorrectly decided and
that the circuit court should be given an opportunity to
reconsider its decision in light of Kansas Gas and
Mackowiak. In footnote 13 of the decision, the court,
however, seems to affirm that intracorporate activities are not
recognized under the federal whistleblower protection
statutes.
XII B 1 d ii Internal Complaints
An employee's reporting of safety and quality problems internally
to his/her employer is a protected activity under the ERA and
other environmental statutes enumerated in 29 C.F.R. § 24.1.
In a case arising out of the Fifth Circuit, the Secretary
declined to follow Fifth Circuit precedent set forth in Brown
& Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984),
stating that the Secretary "has held consistently" that
internal complaints are protected activity.
Bivens v. Louisiana Power & Light, 89-ERA-30
(Sec'y June 4, 1991).
XII B 1 d ii Secretary's criticism of Brown &
Root
In Smith v. Norco Technical Services, 85-ERA-17
(Sec'y Oct. 2, 1987), the Secretary criticized the Fifth
Circuit's approach in Brown & Root. He noted that
section 5851(a) protects an employee who "is about to assist
or participate in any manner in [an NRC proceeding]. . . ."
Thus, if a complainant is able to prove that he was
"about" to make a complaint to the NRC, that clearly
would be protected activity. But he would not have been
protected under Brown & Root if he only made a complaint to
his employer and did not threaten to go to the NRC. The
Secretary found "no logical reason for treating an employee
differently, exposing him to discharge in the latter case for
essentially the same conduct for which he otherwise would receive
full protection."
XII.B.1.d.ii. Secretary acquiesces in 5th Circuit
In Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7,
1994), the Secretary found that Complainant did not establish
that he engaged in protected activity prior to his lay off.
Complainant's expressions of concern to his immediate supervisors
prior to his lay off were internal complaints, and the U.S. Court
of Appeals for the Fifth Circuit, whose decisions are controlling
in this case, has held that internal complaints are not protected
under the ERA. Brown & Root v. Donovan, 747 F.2d 1029
(5th Cir. 1984); Goldstein v. Ebasco Constructors, Inc.,
86-ERA-36 (Sec'y Aug. 16, 1993).
The Secretary noted that the U.S. Court of Appeals for the Fifth
Circuit was the only federal circuit to hold that internal
complaints were not protected under the ERA. On October 24,
1992, the ERA was amended to provide express coverage for
internal complaints, in effect overruling Brown & Root v.
Donovan. See Pub. L. No. 102-486, 106 Stat. 2776
(Oct. 24, 1992).
[Editor's note: The ERA amendments may not affect the 5th
Circuit's view in regard to other statutes covered by 29 C.F.R.
Part 24. The Secretary's aquiescence is a change of position.
In a series of earlier decisions, he had declined to acquiesce,
even within the 5th Circuit. See, e.g., Goldstein v. Ebasco
Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992).]
XII B 1 d ii Secretary's position on internal complaints
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
4, 1987) (order of remand), the Secretary explained why he
declined to follow the decision of the Fifth Circuit in Brown
& Root. Based on the legislative history, the Secretary
concluded that the ERA, the CAA and the FWPCA should be
interpreted in a parallel with the National Labor Relations Act
and the Coal Mine Health and Safety Act. Both of the latter Acts
had been interpreted broadly to include internal complaints. In
addition, other employee protection laws have been interpreted
broadly to protect internal complaints. The Secretary instructed
the ALJ on remand not to follow Brown & Root even
though the case arose in the Fifth Circuit.
The Secretary stated that he recognized that administrative
agencies are bound to follow the law of the circuit in which a
case arises, conflicting decisions of other circuits
notwithstanding, unless and until the Supreme Court resolves the
conflict. Based on the Supreme Court's denial of certiorari in
Kansas Gas & Electric v. Brock, 780 F.2d 1505 (1985),
cert. denied, 106 S. Ct. 3311 (1986), a case in which
internal complaints were found to be protected under the ERA, the
Secretary concluded that the Fifith Circuit "should be given
another opportunity to consider whether internal complaints are
protected".
[Editor's note: In footnote 13 of Willy v. Coastal Corp.,
855 F.2d 1160 (5th Cir. 1988), the Fifth Circuit appears to have
declined the Secretary's invitation. This case involved the
question of removal of the Complainant's state law based wrongful
discharge case to federal court, and the internal complaint issue
was not the focus of the decision.
The ALJ, apparently without knowledge of this related case, held
on remand from the Secretary that he was constrained not to
follow Brown & Root. Willy v. The Coastal
Corp., 85-CAA-1 (ALJ Nov. 29, 1988). The ALJ found that the
Complainant carried his burden of proof, but recommended denial
of relief because the Complainant had knowingly presented
misleading evidence.]
XII B 1 d ii Reporting violations internally
Reporting violations internally is a protected activity under the
ERA whistleblower provision. Nichols v. Bechtel
Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip
op. at 8-10 (declining to follow Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984) in the Eleventh
Circuit, where there is no controlling authority).
XII B 1 d ii Nonacquiescience to Brown & Root;
internal complaint as protected
activity
In a case arising in the Fifth circuit, the Secretary declined to
follow Brown & Root v. Donovan, 747 F.2d 1029 (5th
Cir. 1984), with respect to a whistleblower who alleged only an
internal complaint. In declining to follow Brown &
Root, the Secretary cited S & H Riggers &
Erectors, Inc. v OSHRC, 659 F.2d 1273, 1278 (5th Cir.),
quoting the following language from that decision: where an
administrative agency respectfully declined to follow Fifth
Circuit view that conflicted with the agency's view, the court
"assume[d] without deciding that [agency] is free to decline
to follow decisions of the courts of appeal with which it
disagrees, even in cases arising out of those circuits. . ."
Bivens v. Louisiana Power & Light, 89-ERA-30
(Sec'y June 4, 1991).
XII B 1 d ii Secretary's position that internal
complaints in SWDA and WPCA complaints are protected activity, even
in the 5th Circuit
In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar.
24, 1995), the Secretary held that
internal complaints are protected activity under the SWDA and the
WPCA, even in the Fifth Circuit. The
Secretary distinguished Brown & Root, Inc. v. Donovan,
747 F.2d 1029 (5th Cir. 1984),
based on the 1992 amendments to the ERA, which legislatively
overturned that decision.
[Editor's note: In Willy v. Coastal Corp.,
855 F.2d 1160 n.13 (5th Cir. 1988), the
Fifth Circuit noted, with apparent disapproval, the Secretary's
nonacquiescence with the logic of
Brown & Root concerning an internal complaint in a CAA
case. Only the ERA was changed
to include internal complaints explicitly. Thus, it is not a
foregone conclusion that the Fifth Circuit's
position is changed by the 1992 ERA amendments in regard to the
environmental whistleblower
provisions.]
XII B 1 d ii Internal complaint under CAA in Fifth
Circuit; Brown & Root does
not govern
In West v. Systems Applications International,
94-CAA-15 (Sec'y Apr. 19, 1995), the
Secretary held that a whistleblower complaint lodged with the
respondent is a protected activity under
the Clean Air Act, even in the Fifth Circuit. The Secretary
distinguished the Fifth Circuit's holding in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984), that internal complaints are
not protected under the ERA whistleblower provision on the
grounds that (1) Brown & Root
was legislatively overturned, effective Oct. 24, 1992, and (2)
the Secretary's consistent position that,
even in the Fifth Circuit, internal complaints are protected
activity. Willy v. The Coastal Corp.,
85-CAA-1 (Sec'y June 4, 1987), slip op. at 8; Willy v. The
Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), appeal docketed, No. 94-40734 (5th Cir.)
In a footnote, the Secretary noted that the parties and the ALJ
made reference to In re Willy, 831
F.2d 545 (5th Cir. 1987), and Willy v. Coastal Corp., 855
F.2d 1160 (5th Cir. 1988), aff'd
112 S. Ct. 1076 (1992). He stated that reliance on these
decisions was misplaced because the issue of
internal complaints was not considered by the Court of Appeals in
either of those cases.
[Editor's note: In Willy v. Coastal Corp.,
855 F.2d 1160 n. 13 (5th Cir.
1988)aff'd 112 S. Ct. 1076 (1992), which concerned the
Complainant's concurrent state wrongful
termination action, the Fifth Circuit noted the Secretary's
nonacquiescence on the internal complaint
issue, and although it did not squarely address the
nonacquiescence issue, appeared to affirm its
position that internal complaints are not covered.
While the ERA legislatively overturned Brown & Root in
1992, the Fifth Circuit's analysis in
Brown & Root relied extensively on the wording of the
ERA at the time. The 1992
amendments to the ERA in no way affected the wording of the CAA,
which remains closely related to
the wording of the pre-amendment ERA.
See also the recent decision in Bechtel Construction Co. v.
Secretary of Labor, No. 94-
4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS
9029) (case below 87-ERA-44), in
which the Eleventh Circuit joined the majority of other circuits
holding that internal complaints may
constitute protected activity under the ERA whistleblower
provision as it existed prior to the 1992
amendments. The court explicitly rejected the
reasoning in Brown & Root, Inc.
v. Donovan, 747 F.2d 1029 (5th Cir. 1984).]
XII B 1 d ii Secretary acquiesces in Brown &
Root for pre-1992
amendment complaints
In a complaint filed in the Fifth Circuit prior to the effective
date of the 1992 amendments to the ERA,
Complainant's internal complaints were not protected pursuant to
Brown & Root v.
Donovan, 747 F.2d 1029 (5th Cir. 1984); Goldstein v.
Ebasco Constructors, Inc., 86-ERA-36
(Sec'y Aug. 16, 1993), rev'd on other grounds sub nom. Ebasco
Constructors v. Martin, No. 92-
4576 (4th Cir. Feb. 19, 1993) (unpublished).
Filing internal complaints is protected activity under CERCLA.
In addition, personnel other than quality control inspectors can
be protected for their internal complaints. Pogue v.
United States Dept. of the Navy, 87-ERA-21 (Sec'y May 10,
1990), rev'd on other grounds, Pogue v. United
States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987).
XII B 1 d iii Employees who are not quality control
inspectors and who make internal
complaints
The making of internal safety complaints is protected activity
even when made by employees who are not quality control
inspectors. Nunn v. Duke Power Co., 84-ERA-7
(Sec'y July 30, 1987) (remand) (ALJ had ruled that Brown &
Root was applicable because Mackowiak did not apply to
employees other than quality control inspectors).
In Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992), the complainant observed an oil spill
and complained to the foreman of a waste disposal crew. The
waste disposal company had contracted with the complainant's
employer (the respondent) to provide crew boat services. The
complainant was the skipper of the crew boat. The Secretary held
that even though the complainant did not work for the waste
disposal company, his complaint was an internal complaint. She
based that holding on the Fifth Circuit's definition of
"external" complainants: "the employee's contact
or involvement with a competent organ of government. . . ."
Brown & Root, 747 F.2d at 1036.
[Editor's note: This finding is a bit confusing. It appears
that the Secretary is focusing on whether a complaint is internal
or external if made to a company that has a service contract with
the respondent. She does not appear to reach the question of
whether a complaint made to such a company is protected activity
at all since it was not made to the respondent. In
Adams, however, it is clear that the complaint was
eventually communicated to the respondent's president, so the
Secretary probably would have not had to reach the second part of
the question.]
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
In Conley v. McClellan Air Force Base, 84-WPC-1
(Sec'y Sept. 7, 1993), Complainant, an industrial waste water
treatment plant operator, engaged in protected activity when he
complained or "appealed" to the California State Water
Resources Control Board about the classification of Respondent's
McClellan Air Force Base Waste Water Treatment Plant.
(Respondent, however, provided evidence that it reprimanded
Complainant for another reason, and Complainant failed to prove
pretext).
[Nuclear and Environmental Whistleblower Digest XII B 2 a]
PROTECTED ACTIVITY; REPORT TO LOCAL FIRE DEPARTMENT
Complaints to and cooperation with local authorities are protected under the whistleblower
provisions; thus Complainant's report to a local fire department of a possible environmental
hazard was found to be protected activity in Masek v. The Cadle Co., ARB
No.97-069, ALJ No. 1995-WPC-1 @ 7 (ARB Apr. 25, 2000).
XII B 2 a Complaints or cooperation with local
authorities as protected activity
Complaints to, and cooperation with, local authorities are
protected under DOL whistleblower provisions. See, e.g.,
Ivory v. Evans Cooperage, Inc., 88-WPC-2 (Sec'y Feb. 22,
1991), slip op. at 2, 5.
Helmstetter v. Pacific Gas & Electric Co., 91-
TSC-1 (Sec'y Jan. 13, 1993).
Under the employee protection provision of the CAA, a complaint
about an unsafe or unhealthful condition communicated to
management or to an outside agency such as OSHA is protected.
Thus, where a complainant made both internal and external
complaints over a five-month period about the release of asbestos
and crystalline silica into the atmosphere and participated in a
regulatory inspection, his complaints "touched on"
public safety and health, the environment, and compliance with
the CAA. [citations omitted]
Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).
[N/E Digest XII B 2 d]
PROTECTED ACTIVITY; PARTICIPATING IN TELEVISION REPORT
Participating in a television report on alleged leakage of radioactive waste is protected
activity under the ERA's whistleblower provision. Dobreuenaski v. Associated Universities,
Inc., 96-ERA-44 @ 9 (ARB June 18, 1998).
XII B 2 b Contact with OSHA protected under CERCLA even
if it concerned solely occupational safety and
health
In Post v. Hensel Phelps Construction Co., 94-CAA-
13 (Sec'y Aug. 9, 1995), the ALJ stated that the Complainant's
contact with, inter alia, OSHA was an activity protected
under the CAA, CERCLA, SWDA, and the TSCA. The Secretary,
although adopting the ALJ's decision, clarified this point:
Those acts generally do not protect complaints
restricted solely to occupational safety and health, unless
the complaints also encompass public safety and health or
the environment. . . . In any event, the ALJ correctly
noted that a provision in CERCLA protects an employee who
"has provided information to a State or to the Federal
Government. . . ." 42 U.S.C. § 9610(a). . . .
Accordingly, it was correct to find in this case that Post's
contact with OSHA was protected activity even if it
concerned solely occupational safety and health.
Slip op. at 2 (citations omitted).
XII.B.2.b. Right to bypass "chain of
command"
Saporito v. Florida Power & Light Co., 89-ERA-7
and 17 (Sec'y June 3, 1994), the Secretary held that an employee
who refuses to reveal his safety concerns to management and
asserts his right to bypass the "chain of command" to
speak directly with the Nuclear Regulatory Commission is
protected under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).
[Editor's note: The Secretary is apparently reconsidering
this ruling. SeeSaporito v. Florida Power &
Light Co., 89-ERA-7 and 17 (Sec'y Sept. 12, 1994) (order
inviting Wage & Hour Administrator to file amicus brief on
Respondent's motion to reconsider).]
The Secretary noted that the Respondent had asserted as grounds
for dismissal that the Complainant (1) refused to stay after his
regular work day to attend a meeting at which a supervisor again
wanted to ask Saporito about his safety concerns, and (2) refused
to be examined by a company doctor. The Respondent decision to
require the examination grew out of the excuse the Complainant
gave for refusing to stay late for the meeting -- the he was ill,
and the Complainant's reason for taking 12 days sick leave after
the date of the missed meeting, that the Complainant was
suffering from stress related medical problems. The Secretary
concluded that each of these reasons for discharge is related, at
least in part, to Saporito's refusal to reveal his safety
concerns to the Respondent, which was protected activity.
Mere contact with the Government Accountability Project or the
Palmetto Alliance does not establish protected activity. It was
error, however, for an ALJ to rule on a motion for summary
decision that contact with Palmetto and GAP was not protected
activity because Brown & Root required contact with a
government agency. Complainant may be able to establish that
such contact was related to protected activity. Nunn v.
Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987) (remand).
[Editor's note: I think this is the implication of the
Secretary's ruling, but I would advise reviewing this discussion
yourself. See slip op. at 12-13.]
[Nuclear & Environmental Whistleblower Digest XII B 2 c] PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS
In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.
[Nuclear & Environmental Digest XII B 2 c]
PROTECTED ACTIVITY; ENVIRONMENTAL ACTIVIST MAKES CONTACT WITH
GOVERNMENT OFFICIALS WITHOUT KNOWLEDGE OF COMPLAINANT
In Ferguson v. Weststar, Inc., 1999-CAA-9 (ALJ Jan. 27, 2000),
Complainant spoke to a neighbor whom he knew to a be an environmental activist about several
allegedly unsafe practices of his employer related to a government contract for sandblasting and
removal of lead-based paint from a hammerhead crane. The following day, without
Complainant's knowledge, the neighbor sent e-mails to several government offices about
Complainant's allegations. A government officer employed to monitor private contracts and
enforce contract compliance held a meeting with Complainant and the employer's Project
Supervisor to discuss the contents of the e-mail during the meeting Complainant confirmed that
he was the source of the information in the e-mail. The ALJ, based on the Secretary of Labor's
decisions in Scott v. Alyeska Pipeline Service Co., 1992-TSC-2 (Sec'y July 25, 1995),
and Wedderspoon v. City of Cedar Rapids, Iowa, 1980-WPC-1 (Sec'y July 28, 1980),
concluded that Complainant had engaged in protected activity: even though Complainant did not
contact state or federal authorities directly, the causal nexus was supplied by the activist's contact
and subsequent investigation by a government official.
XII B 2 c Protected activity; Contact with private
person
Providing information to a private person for transmission to
responsible government agencies, or for use in environmental
lawsuits against one's employer, is protected activity under the
CAA, SWDA, TSCA, and FWPCA. Scott v. Alyeska Pipeline
Service Co., 92-TSC-2 (Sec'y July 25, 1995), citing
Simon v. Simmons Indus., 87-TSC-2 (Sec'y Apr. 4, 1994).
In Wedderspoon v. City of Cedar Rapids,
Iowa, 80-WPC-1, (Sec'y July 28, 1980) the Secretary
adopted the ALJ's findings (ALJ July 11, 1980). Complainant,
employed by Respondent as a water pollution control operator,
reported discharge of sludge to a friend who was an
"environmental activist". The friend notified a
newspaper reporter of the discharge. Thereafter the reporter
contacted the Complainant and wrote an article based on
information received by the Complainant regarding the sludge
discharge. Following the article's appearance in the Des Moines
Register, the Iowa Department of Environmental Quality
investigated the discharge. The Complainant was subsequently
suspended from work for five days without pay for his failure to
notify his supervisors of the sludge discharge.
Upon determining that the Respondent had suspended the
Complainant without pay in response to the Complainaint's
disclosure of the violation rather than for the Complainant's
failure to notify his supervisors of the discharge, the ALJ
considered whether the Complainant's disclosure was a protected
activity. The ALJ concluded that there was a "causal
nexus" between the Complainant's communication with the
reporter and the subsequent investigation of the discharge by the
state. Furthermore, the ALJ determined the State's investigation
of the discharge was "a proceeding resulting from the
administration or enforcement of the provisions of" the Act
since the applicable statutory law of Iowa demonstrated that the
Department of Environmental Quality was intended to carry out the
provisions of the federal statute as well as supplementing or
implementing state law. Accordingly, the Complainant is
protected under the Act as an employee who caused the institution
of "any proceeding" resulting from the administration
or enforcement of the Act."
[Nuclear & Environmental Whistleblower Digest XII B 2 d] PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS
In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.
PROTECTED ACTIVITY; THREAT TO GO TO THE PRESS; RELEVANCE OF
COMPLAINANT'S MIXED OR SELF-SERVING MOTIVES [N/E Digest XII B 2 d and XII C 3]
In Diaz-Robainas v. Florida Power & Light
Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Complainant's
threat to go the press with his safety concerns was protected
activity. His threat was protected even if he also intended to
expose matters other than his protected concerns. The ALJ found
that the Complainant misused the ERA by raising safety issues
only to intimidate management into increasing his performance
rating. The Secretary noted, however, that he has held that
where the complainant has a reasonable belief that the respondent
is violating the law, other motives he or she may have had for
engaging in protected activity are irrelevant.
XII b 2 d Protected activity; contact with the press
Contact with the press is protected activity under the
whistleblower statutes. Carter v. Electrical District No.
2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995).
XII.B.2.d. Contact with media
In Floyd v. Arizona Public Service Co., 90-ERA-39
(Sec'y Sept. 23, 1994), the Secretary held that the Complainant
engaged in a protected activity when he met with a newspaper
reporter and provided him documents concerning safety at the
Respondent's nuclear facility.
See Pooler v. Snohomish County Airport, 87-TSC-1
(Sec'y Feb. 14, 1994), slip op. at 5 (speaking to newspaper
reporter about safety issue is a protected activity).
Cf. Crosby v. Hughes Aircraft Co., 85-TSC-2
(Sec'y Aug. 17, 1993), slip op. at 23 n.15 (contacting the
news media not protected under environmental acts' analogous
whistleblower provisions only because the subject matter
raised with the media was not an environmental concern),
pet. for review filed, No. 93-70834 (9th Cir. Oct.
18, 1993) and Donovan v. R.D. Andersen Const. Co.,
Inc., 552 F. Supp. 249, 251-253(D. Kan. 1982)
(employee's communication to the media protected because it
could result in institution of Occupational Safety and
Health Act proceeding).
In Simon v. Simmons Foods, Inc., 1995 U.S. App.
LEXIS 3715 (8th Cir. 1995) (case
below 87-TSC-2), the court affirmed the Secretary and ALJ's
findings that the Respondent would have
discharged the Complainant for the false and potentially damaging
statements he made about the
company even if he had not engaged in protected activity. In
Simon, the Complainant
had a discussion with a contractor about the Respondent's use and
disposal of heptachlor-contaminated
chicken feed. At the time, the Complainant had been cooperating
with the government in an
investigation of Respondent regarding the alleged use of
contaminated feed.
The Court noted that the Secretary had concluded that the
statements were not protected activity
because making health and safety complaints to a member of the
general public (as opposed to a co-
worker, employer/supervisor, union officer, or newspaper
reporter), without demonstrating that the
employee is about to file a complaint or participate or assist in
a proceeding, is too remote from the
remedial purposes of the relied upon whistleblower provisions to
be a protected activity.
A foreman who had been demoted after making safety complaints on
behalf of the crews, engaged in further protected activity when
he communicated the situation to the crews, which resulted in
their refusal to work unless their safety concerns were
addressed. The Secretary characterized this communication as
"an early version of [the Complainant's] section 211(b)
discrimination complaint, which is protected under section
211(a)(1)(D) as a proceeding commenced or about to be commenced
under the ERA. 42 U.S.C. § 5851(a)(1)(D)."
Harrison v. Stone & Webster Engineering Group,
93-ERA-44 (Sec'y Aug. 22, 1995).
[N/E Digest XII B 2 f]
PROTECTED ACTIVITY; EXPRESSION OF SAFETY-RELATED CONCERNS TO
FELLOW WORKERS MUST BE VIEWED IN CONTEXT
In Stone & Webster Engineering Corp. v.
Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2,
1997)(case below 93-ERA-44), the Eleventh Circuit upheld an interpretation of
42 U.S.C.
§ 5851(a) "as shielding the expression of safety-related concerns to
fellow workers,
when . . . that expression has a public dimension and fits closely into an
extended pattern of
otherwise protected activity." The court did not reach the question of
whether such an
expression made in an isolated or private communication was sufficient to
constitute protected
activity, but emphasized that the expression of concern must be viewed in
context. The court
indicated that section 5851 does not protect every act that an employee
commits under the
auspices of safety, but concluded that section 5851(a)(1)(F) was purposely
drafted by Congress is
broad terms.
The court indicated recognition that this approach may cause "some
difficulty in
distinguishing between offering a shield behind which some employees may
incite trouble about
a host of non-safety issues, including labor disputes, and one behind which
well-intentioned
employees may raise an alarm against safety hazards." The court,
however, concluded that
"this is a balance for the Secretary of Labor to attempt to strike in the
first instance. The
only question is whether the Secretary's balance here, as we have cast it, is
a permissible reading
of the whistleblower provision. We think it is."
In Stone & Webster, Complainant was a foreman who had raised
concerns
internally and to the NRC about a new firewatch scheme (checking at the end of
a shift to make
sure no fires had broken out). Shortly thereafter he was demoted.
Complainant then asked for
members of his former crew to be gathered, whereupon he told them about his
demotion and his
opinion that nothing had been done about the firewatch. The workers decided
that they would
not work until the fire-safety issue had been resolved. The workers were
convinced by a
manager to return to work, and later the old firewatch procedures were
returned to. The next day,
however, Complainant was transferred to less desirable work. Complainant's
lost back wages
amounted to only about $800, but the NRC had imposed a civil fine of $80,000
based on the
Secretary of Labor's finding of retaliation.
PROTECTED ACTIVITY; DISTRIBUTION OF LEAFLET AT COMPANY
PICNIC
[N/E Digest XII B 2 f]
In Immanuel v. Wyoming
Concrete Industries, Inc., 95-WPC-3 (ALJ Oct. 24,
1995), the ALJ recommended a finding that the Complainant's
distribution of a leaflet at a company picnic that raised
environmental concerns grounded in conditions reasonably
perceived as violations of the FWPCA was protected activity. The
ALJ found that the remedial purpose of the statute would not be
served if an employer was permitted to retaliate merely because
management learned of the employee's disclosure indirectly
through another employee.
[N/E Digest XII B 2 g]
COVERAGE
In Ruud v. Westinghouse Hanford
Co., 88-ERA-33 (ARB Nov. 10, 1997), the ALJ had found violations of
the
employee protection provisions of the CAA and the CERCLA, but declined to find coverage
under the SDWA which, unlike the CAA and CERCLA, provides for awards of exemplary
damages. The ARB disagreed with the rejection of the SDWA complaint because the record
established that Complainant had "discussed leakage of nuclear waste into groundwater
and the Columbia River during hearings convened by a subcommittee of the United States
Congress and during meetings with congressional staff and consultants", and because
leakage and unauthorized disposal formed a basis for Complainant's "burial ground
audit." The ARB concluded that by compiling and providing information about such
contamination, Complainant participated or assisted in a proceeding or other action to promote
safe drinking water. Citing, by comparison, Stone &
Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, at *22
(11th
Cir. July 2, 1997) (discussion about nuclear safety compliance during meeting with co-workers
constituted an action to carry out purposes of the ERA; employee was protected where
"expression has a public dimension and fits closely into an extended pattern of otherwise
protected activity").
[Nuclear & Environmental Whistleblower Digest XII B 2 h] PROTECTED ACTIVITY; PETITIONING CONGRESS; SEEKING A LEGAL OPINION
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.
The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.
[Nuclear & Environmental Whistleblower Digest XII B 2 h] PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS
In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.
[Nuclear & Environmental Whistleblower Digest XII B 2 i] PROTECTED ACTIVITY; PETITIONING CONGRESS; SEEKING A LEGAL OPINION
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.
The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.
The ALJ erred in basing his finding of failure to establish a
prima facie case in part on Complainant's not having filed a
formal complaint. The Secretary stated that an informal safety
complaint to a supervisor is sufficient to establish protected
activity. Corroborating evidence is not required to establish a
prima facie showing of protected activity; the complainant's
testimony may be sufficient. Samodurov v. General Physics
Corp., 89-ERA-20 (Sec'y Nov. 16, 1993).
[Nuclear & Environmental Whistleblower Digest XII C 1] PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id., USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
INTERNAL COMPLAINTS; INFORMALITY OF COMPLAINT
[N/E Digest XII C 1 and XII B 1 d i]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board found that the ALJ correctly recognized that internal
complaints were protected under the whistleblower provisions of
the pertinent environmental statutes. The Board, however, stated
that it was reluctant to accept the ALJ's decision insofar as the
ALJ at points suggested that he was reluctant to find
Complainant's alleged complaints to be protected activity because
they were both internal and informal.
The Board observed that an informal and internal safety
complaint may constitute protected activity. Slip op. at 5,
citing, Nichols v. Bechtel Construction, Inc., 87-ERA-44,
slip op. at 10 (Sec'y Oct. 26, 1992) (employee's verbal
questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric
Corp., 86-ERA-39, slip op. at 1, 3 (Sec'y Oct. 30, 1991)
(employee's complaints to team leader protected).
The Board emphasized that "[i]nternal safety complaints
are covered under the environmental whistleblower statutes in the
Eighth Circuit, the Fifth Circuit and every other circuit. See
Amendments to the ERA in the Comprehensive National Energy Policy
Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776."
The Board noted that "[t]he only current exception to this
rule is for cases filed in the Fifth Circuit under the Energy
Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §
5851 (1988), prior to October 24, 1992."
XII C 1 Complaint need only "touch on"
subjects regulated by the pertinent statutes
Where the Complainant's complaint to management "touched
on" subjects regulated by the
pertinent statutes, the complaint constitutes protected activity.
See Nathaniel v. Westinghouse
Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), slip op.
at 8-9.
XII C 1 Informal complaint to a supervisor
An informal complaint to a supervisor may constitute protected
activity. See, e.g., Nichols v. Bechtel Construction,
Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (employee's verbal
questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric
Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints
to team leader protected).
Crosier v. Portland General Electric Co., 91-ERA-2
(Sec'y Jan. 5, 1994) (complainant's questioning his supervisor
about an issue related to safety constituted protected activity).
XII C 1 Informal complaint to a supervisor
An informal complaint to a supervisor may constitute protected
activity. See, e.g., Nichols v. Bechtel Construction,
Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (employee's verbal
questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric
Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints
to team leader protected).
Crosier v. Portland General Electric Co., 91-ERA-2
(Sec'y Jan. 5, 1994) (complainant's questioning his supervisor
about an issue related to safety constituted protected
activity).
Under 42 U.S.C. § 5861(a) there must be a proceeding either
commenced or about to be commenced before a whistle blower is
protected. Norris v. Lumbermen's Mut. Casualty
Co., 881 F2d 1144 (1st Cir. 1989) (noting that there is a
disagreement in the circuits about the statutory construction to
be given to "proceeding." See, e.g., Kansas Gas
& Electric Co. v. Brock, 780 F2d 1505 (10th Cir. 1985),
cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct.
3311 (1986)).
In Lassin v. Michigan State University, 93-ERA-31
(ALJ Sept. 29, 1993), the ALJ held that a telephone contact with
the NRC was protected activity even though Complainant was only
seeking basic information and was not making a formal complaint
at the time, where Complainant did convey his concern that a
radioactive spill was not being adequately addressed. The ALJ
stated that the public policy of facilitating the information to
the government is served irrespective of the reporter's
specifically defined intent in making the communication.
[Nuclear & Environmental Whistleblower Digest XII C 3]
PROTECTED ACTIVITY; REPORT OF PAINT OVERSPRAY INTO AMBIENT AIR; COMPLAINANT'S MOTIVE FOR MAKING REPORT NOT RELEVANT
In Smith v. Western Sales & Testing, ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004), the Complainant's primary motive for lodging complaints about the Respondent's painting operation was that paint overspray was damaging his vehicle. Nonetheless, the Complainant's complaint included concerns about paint fumes released into the ambient air, which the ARB concluded was an action to carry out the purposes of the CAA. The Board noted that it was well established that a whistleblower's motives need not be concern for the environment; rather, the relevant issue is whether the complainant's belief that the respondent is violating the environmental laws was reasonable. The ARB disagreed with the ALJ that the Complainant was required to establish that the release of pollution was adequate to trigger a violation of the CAA. The ARB also noted that pro se pleading should be construed liberally.
[Nuclear & Environmental Whistleblower Digest XII C 3] PROTECTED ACTIVITY; COMPLAINANT'S MOTIVES
In Hasan v. Sargent & Lundy, 2000 ERA 7 (ALJ Dec. 5, 2002), Employer argued that Complainant raised safety concerns with the expectation that he would be assigned to complete additional review work and thereby extend his employment. Thus, Respondent argued, although Complainant's activity would typically be considered protected activity, it should not in the instant case because Complainant was not a good faith whistleblower. The NRC, however, had validated some of the problems raised by Complainant. Thus, the ALJ concluded that although the record supported questions about Complainant's motives, Complainant had nonetheless engaged in protected activity.
[N/E Digest XII C 3]
PROTECTED ACTIVITY; DISTRIBUTION OF LEAFLET; MOTIVE FOR
DISTRIBUTION NOT RELEVANT
Distribution of a leaflet at a company picnic raising, inter alia,
environmental safety issues, was
found in Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3
(ARB
May 28, 1997), to constitute an internal complaint protected by the FWPCA.
Respondent contended that the distribution of the leaflet should not be
considered protected
activity because Complainant allegedly was merely making the distribution in
an attempt to
fabricate a claim for retaliatory discharge already knowing that he was about
to be terminated
from employment for poor work performance and customer complaints. The Board
held,
however, that whistleblower protection is not removed merely because a
complainant may have
other motives for engaging in the protected activity.
[N/E Digest XII C 3]
PROTECTED ACTIVITY; EMPLOYEE'S THREAT TO EXPOSE ALLEGED
WRONGDOING
In MacLeod v. Los Alamos National Laboratory, 94-CAA-18 (ARB
Apr. 23, 1997)(this was actually an "ERA" case), Complainant failed
to assume full
responsibility for her actions in regard to a safety-related error, and
threatened to hold the chain
of command responsible (by asserting that she had not been properly supervised
or certified, and
that if she was going to be held accountable, then everyone up the line should
be held
accountable). The Board held that this response to a proposed reprimand had
both protected and
unprotected aspects -- that the threat to expose alleged wrongdoing was
protected. The ALJ, in
considering Respondent's explanation for the adverse action, had concluded
that Complainant's
response was merely a way to avoid responsibility for her mistakes. The
Board, however, found
that while Complainant may not have exhibited the maturity or responsibility
that her supervisor
sought in an employee by failing to "take ownership" of the mistake,
Complainant
was making protected allegations and threats to expose wrongdoing by
management.
MOTIVE; COMPLAINT'S MOTIVE; RESPONDENT'S MOTIVE;
BLACKMAIL [N/E Digest XII C 3]
In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1
(Sec'y Nov. 1, 1995), the Complainant presented a letter to the
Respondent's owner complaining about the company (a non-hazardous
waste facility) generally and about various alleged environmental
violations, including a complaint about the handling of
contaminated soil. In concluding the letter, the Complainant
made several employment demands, such as a detailed written
description of his duties; a posted notice of his duties; and an
employment contract essentially doubling his current salary. The
Complainant had been hired to set up an on-site laboratory. The
owner considered this attempted blackmail, but put it aside,
refusing to accede to the employment demands and instead hiring a
different person as facility manager. The new facility manager
was experienced in hazardous waste treatment facilities.
About one month later, the new facility manager reprimanded
the Complainant for a breach of management confidentiality when
he told various employees that they could be or would be fired
soon. A few days later, the Complainant confronted the facility
manager about whether the contaminated soil should be landfilled.
At that time the Complainant presented the same letter to the
facility manager, stating, inter alia, that he did not believe
the manager had the authority or guts to fire him. The manager
called the owner, informing him that he could not continue to
work under the conditions. Five days later, the owner fired the
Complainant.
At the hearing, the Respondent contended that the Complainant
was not entitled to protection because he allowed the violations
to occur while he was collecting evidence (the Complainant had
surreptitiously tape-recorded several conversations), committed
violations himself, and essentially was using the law as a tool
of extortion. The Secretary noted that where the complainant has
a reasonable belief that the respondent is violating the law,
other motives he or she may have for engaging in protected
activity are irrelevant. Distinguishing several Federal court
decisions cited by the Respondent, the Secretary found that there
was no quid pro quo, and that the Complainant's employment
demands for a job description and more authority were related
directly to his allegations that safety violations were
occurring. There was no evidence that the Complainant allowed
violations to occur or intentionally committed violations
himself. Nor was there any evidence that plans leading to
termination of the Complainant's employment were under
consideration prior to the Complainant's whistleblowing
activities.
The Secretary found that the Respondent's purpose for firing
the Complainant was to silence the Complainant's persistent and
increasingly adamant concerns about the contaminated soil. The
Secretary noted that an employer may take action against an
employee for improper conduct in raising otherwise protected
complaints, but noting that the Respondent did not specify
intemperate language or defiant conduct as a reason for the
termination, found that the Complainant's conduct was not
indefensible under the circumstances. The Secretary indicated
that the Respondent's complaints about the Complainant's attitude
were not a defense because the attitude resulted from the
Complainant's outspoken approach and insistence that the soil was
not being handled properly. The Secretary found that the
Respondent's owner's consultation with authorities and release of
the letter to those authorities of his own volition did not
absolve it from wrongdoing in firing the Complainant.
PROTECTED ACTIVITY; THREAT TO GO TO THE PRESS; RELEVANCE OF
COMPLAINANT'S MIXED OR SELF-SERVING MOTIVES [N/E Digest XII B 2 d and XII C 3]
In Diaz-Robainas v. Florida Power & Light
Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Complainant's
threat to go the press with his safety concerns was protected
activity. His threat was protected even if he also intended to
expose matters other than his protected concerns. The ALJ found
that the Complainant misused the ERA by raising safety issues
only to intimidate management into increasing his performance
rating. The Secretary noted, however, that he has held that
where the complainant has a reasonable belief that the respondent
is violating the law, other motives he or she may have had for
engaging in protected activity are irrelevant.
XII C 3 Protected activity; relevance of complainant's
motives
If a complainant had a reasonable belief that the Respondent was
in violation of an environmental act, that he or she may have
other motives for engaging in protected activity is irrelevant.
The Secretary concluded that if a complainant is engaged in
protected activity which "also furthers an employee[']s own
selfish agenda, so be it." Carter v. Electrical
District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26,
1995) (some evidence indicated that Complainant's motives were to
retaliate because of a wage dispute with a new manager).
XII C 3 Animosity against co-worker as part
of complainant's motive
In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), the
Secretary indicated that merely because a complainant is
motivated in part by a desire to retaliate
against a co-worker, the expression of a safety or health concern
is not removed from categorization as
a protected activity. Specifically, the Secretary stated that
animosity toward a co-worker does not
foreclose independent concerns about a safety issue, and should
not diminish protection. Slip op. at
12-13 and n.12.
XII C 3 Focus need not be on environmental act
Complaints to government officials need not be focused on the
subject matter of the environmental act affording whistleblower
protection as long as they were brought to the government's
attention. Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (Sec'y June 24, 1992) (by implication;
Complainant went to OSHA which was primarily concerned with
ventilation, sanitation and work hazard, but also told OSHA about
improper storage or disposition of chemicals and something wrong
with the well water).
In Knox v. U.S. Dept. of the
Interior, ARB No. 07-105, ALJ No. 2001-CAA-3 (ARB Aug. 30, 2007), the Fourth
Circuit instructed the ARB on remand to reconsider the record and decide if the
Complainant adequately proved that he reasonably believed that the Respondent was
violating EPA regulations and thus engaged in CAA-protected activity. The
Complainant had been worried about asbestos at the Harper’s Ferry Job Corps Center.
The ARB found that the Complainant had presented some evidence that
could suggest that he believed that the Respondent violated 40 C.F.R. §§
61.145, 61.150, the regulations that cover reporting, handling, and disposing
of asbestos before and during building demolition and renovation. The ARB
found that the only evidence that the Complainant presented that directly
pertained to renovation-demolition was his testimony that he was aware that,
before he began to work at the Center, construction work had been performed on
the roofs of student dormitories. The ARB found, however, that the Complainant did
not know whether those roofs contained asbestos, and therefore he could not
have reasonably believed that that the Respondent had renovated buildings
containing asbestos. The Complainant also presented the testimony of a
maintenance worker at the Center who told the Complainant that he had removed
tile and drywall that might have had asbestos. The ARB, however, found that
this testimony did not establish a reasonable belief that the Respondent was
renovating building containing asbestos because the maintenance worker had not indicated
that he renovated to the extent that he disturbed, sanded, drilled or otherwise
damaged areas containing asbestos, which, according to a Survey Report, was
what would have made the asbestos hazardous. Furthermore, the maintenance worker
admitted that he did not know the difference between dust and asbestos, and had
only told the Complainant that he had removed tile and drywall that “might have
had asbestos.” In addition, the Respondent’s regional safety director testified
that he had talked to the maintenance worker and determined that the location
he been working in was not an area having asbestos.
In addition, the ARB received some
newly obtained evidence indicating that the Complainant had speculated that
students and employees removed and disposed of asbestos floor tiles in the
summer of 1998. The ARB held that speculation could not be the basis for a
reasonable belief, and therefore the newly admitted evidence did not
demonstrate that the Complainant reasonably believed that the Respondent violated
the EPA renovation-demolition regulation.
XII C 4 Coverage under SWDA; test of
reasonable belief that substance is hazardous
In Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y
Jan. 25, 1994), a Solid Waste
Disposal Act (SWDA) whistleblower case, the Complainant alleged
that he was fired by the Respondent
because he complained to management about dumping of antifreeze
and a spill of oil. The
Complainant, however, stipulated that neither antifreeze nor
motor oil is classified as hazardous waste
under the SWDA, and the ALJ recommended dismissal based on lack
of jurisdiction.
Establishment of reasonable belief test
The Secretary, however, concluded that where the complainant has
a reasonable belief that the
substance is hazardous and regulated as such, he or she is
protected under the SWDA. The Secretary
noted that the applicable law indicates that wastes are
considered hazardous if they are listed as such
by the EPA, or if they have one four technical characteristics of
hazardousness (ignitability, corrosivity,
reactivity, and toxicity). See 40 C.F.R. §§
261.11(a)(1), 251.11(b), 261.20-261.24,
261.30-261.33. Because of the technical complexity of knowing
how a particular chemical is
categorized, the Secretary concluded that "[i]t is
unreasonable to expect the average lay person to
know what is or is not on the Act's hazardous waste 'list' [or]
whether a particular substance met[s] one
of th[e] tests for hazardousness." Slip op. at 6-7.
Limits on reasonable belief test
The Secretary placed several limits on the reasonableness test.
First, it is not enough that the
employee believe that the environment may be negatively impacted
by the employer's conduct; rather,
the employee's complaints must be grounded in conditions
reasonably perceived to be violations of the
environmental acts. Second, there can be jurisdictional limits
to employees' complaints -- "the
environmental whistleblower provisions are intended to apply to
environmental and not other types of
concerns." Slip op. at 9, citing Decresci v. Lukens
Steel Co., 87-ERA-13 (Sec'y Dec. 16,
1993) (ERA whistleblower complaint not raised by allegations of
race or sex discrimination); Aurich v.
Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y
Apr. 23, 1987) (remand
order)(emissions to outside air covered by CAA whistleblower
provision; emissions as an occupational
hazard not covered). In the instant case, the Secretary ruled
that the Complainant's allegations about
oil and anti-freeze fell within the environmental rubric.
Application of reasonable belief test
In applying the reasonable belief test, the Secretary considered
whether "under the circumstances
it was reasonable, given [the Complainant's] training and
experience, for him to believe that used oil
and/or antifreeze were hazardous wastes subject to EPA
regulation. The Secretary then delved into the
"complex regulatory history regarding used oil" and
concluded that it was reasonable for the
Complainant to belief that a large spill was hazardous and
required some notification to an
environmental agency. In regard to antifreeze (which the
Secretary assumed to contain ethylene
glycol), the Secretary noted that there was evidence of record
that some people believe that antifreeze
is toxic, and that ethylene glycol is regulated under the Clean
Air Act and CERCLA. Thus, he
concluded that it was reasonable for the Complainant to believe
that antifreeze was hazardous and was
regulated as such.
[Nuclear and Environmental Whistleblower Digest XII C 4] PROTECTED ACTIVITY; CAA PROTECTED ACTIVITY MUST RELATE TO REASONABLE BELIEF THAT RESPONDENT WAS EMITTING, OR MIGHT EMIT, POLLUTANT INTO THE AMBIENT AIR
In McKoy v. North Fork Services Joint Venture, ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director that he had observed a supervisor and another employee improperly handling asbestos in the basement of the Plum Island Animal Disease Center bio-containment area and that he believed the asbestos could escape into the air. The ARB stated that "[t]o establish that this was CAA-protected activity, [the Complainant] must prove that when he expressed his concerns about the asbestos to [the Senate staffer and the DHS officer], he reasonably believed that [his Employer] was emitting, or might emit, asbestos into the ambient air. 'Ambient air' is 'that portion of the atmosphere, external to buildings, to which the general public has access.'" USDOL/OALJ Reporter at 6 (footnotes omitted). The Board continued:
Employee complaints about purely occupational hazards are not protected under the CAA's employee protection provisions. For example, in the case of asbestos, even though the Environmental Protection Agency has regulated the manner in which it is handled within workplaces to prevent emissions into the outside air, if the complainant is concerned only with airborne asbestos as an occupational hazard within the workplace, and not in the outer, ambient air, the employee protection provisions of the CAA would not be triggered.
Id. at 7 (footnotes omitted). The ARB agreed with the ALJ's finding that the Complainant had first raised the issue of a possible failure in the air handling system at the ALJ hearing, and therefore when the Complainant spoke to the officials he did not have a reasonable belief that asbestos could escape into the ambient air. Thus, the Complainant did not engage in protected activity under the CAA.
[Nuclear and Environmental Whistleblower Digest XII C 4] PROTECTED ACTIVITY; MERE SPECULATION ABOUT POSSIBLE SECURITY BREACHES DOES NOT SUPPORT A FINDING OF REASONABLE BELIEF OF A CAA OR FWPCA VIOLATION
In McKoy v. North Fork Services Joint Venture, ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director about alleged security lapses in the bio-containment area of the Plum Island Animal Disease Center. The ARB agreed with the ALJ that the Complainant's concerns about security were speculative and did not constitute a reasonable belief that security breaches could enable persons to gain access to hazardous material and therefore harm the environment. Although the Complainant testified that he "could have" stolen materials and in "some way" escaped undetected, he presented no supporting evidence, whereas the record indicated that the Center had elaborate measures in place to prevent the removal of pathogens. The ARB found that the Complainant did not establish protected activity under either the CAA or the FWPCA.
[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; MERE SPECULATION OF POTENTIAL AIR OR WATER POLLUTION IS NOT PROTECTED ACTIVITY
In Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB granted summary decision against the Complainant where his complaint to the Respondent's managers that three manholes his crew had opened could have accumulated flammable or combustible gases that could have ignited and thereby caused air and water pollution, was not a reasonably perceived environmental violation. Although the ARB was willing, for purposes of deciding the summary decision motion, to accept the Complainant's testimony about the reasonable basis to believe that manholes can accumulate potentially explosive gases or other pollutants, it found no evidence that air or water pollution would result. "[The Complainant's] mere belief, without some supporting evidence, that the air and water could become polluted because of the gas or pollutants in or near the manholes involved is not a reasonable perception that [the Respondent] violated the environmental statutes." Slip op. at 8. Therefore, the Complainant's complaints were not protected activity.
[Nuclear and Environmental Digest XII C 4] PROTECTED ACTIVITY; POSSIBLE SPILT IN ARB AND FOURTH CIRCUIT INTERPRETATION OF WHETHER COMPLAINANT'S REASONABLE BELIEF OF VIOLATION ALONE IS SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY
In Knox v. United States Dept. of the Interior, ARB No. 06-089, ALJ No. 2001-CAA-3 (ARB Apr. 28, 2006), PDF the matter was on remand to the ARB from the Fourth Circuit. Knox v. United States Dep't of the Interior, 434 F.3d 721 (4th Cir. 2006). The ARB found that that the Fourth Circuit believed that the ARB's protected activity standard under the CAA only required that the Complainant in the case reasonably believed that asbestos was escaping into the outside, ambient air, and that the ARB had misapplied that standard. The Board, however, clarified its standard as requiring whistleblower to take some action on that belief, and indicated that there may be a conflict between the ARB's standard and the standard enunciated by the Fourth Circuit:
The ARB's protected activity standard for the CAA is . . .that an employee engages in protected activity under the CAA when he or she expresses a concern, and reasonably believes, that the employer has either violated an Environmental Protection Agency (EPA) regulation implementing the CAA or has emitted or might emit, at a risk to the general public, potentially hazardous materials into the ambient air. If the Fourth Circuit's standard for CAA-protected activity, however, requires only that the whistleblower reasonably believe that an employer is violating EPA regulations or is emitting, or is about to emit, potentially hazardous materials into the ambient air, Knox engaged in CAA-protected activity.
USDOL/OALJ Reporter at 5 (footnote omitted). The ARB indicated, however, that regardless of the standard for protected activity, the Complainant still did not prevail in the instant case because he admitted in testimony that he had not expressed a concern to the Respondent's management about asbestos escaping from a Job Corp. facility. Since the Respondent was not aware of the Complainant's protected activity, it could not have retaliated against him because of protected activity.
On appeal again to the Fourth Circuit, the court held:
To the extent that Knox's claim is based on his concern about asbestos escaping into the ambient air from the Center, we hold that the ARB's decision is supported by substantial evidence. As Knox's counsel admitted at oral argument, there is no evidence in the record to establish that Knox specifically reported his concern about asbestos escaping into the ambient air from the Center to DOI
officials, and he has not pointed to any evidence that otherwise sufficiently establishes that DOI was aware of Knox's ambient air concern. Thus, although Knox may have engaged in protected activity regarding ambient air emissions under the ARB's previously announced standard because he reasonably believed that asbestos was being emitted from the Center, see Knox, 434 F.3d at 725, DO[I] could not have retaliated against him because of this belief because of his failure to bring it to the attention of DO[I] officials.
Knox v. United States Department of Labor, No. 06-1726, slip op. at 7 (4th Cir. May 23, 2007) (per curiam)(unpublished) (citation omitted). The court, however, remanded on other grounds.
[Nuclear and Environmental Whistleblower Digest XII C 4] PROTECTED ACTIVITY; COMPLAINANT NEED ONLY HAVE HAD A REASONABLE PERCEPTION OF VIOLATIONS RATHER THAN PROVE ACTUAL VIOLATIONS; COMPLAINT BASED ON VAGUE NOTIONS, ASSUMPTIONS AND SPECULATION, HOWEVER, IS INSUFFICIENT
In Erickson v. U.S. Environmental Protection Agency, ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006),
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HTM
the ARB reviewed the law regarding how correct a Complainant must have been about his or her safety complaint in order to support a 29 C.F.R. Part 24 environmental whistleblower claim:
An employee who makes a complaint to the employer that is "grounded in conditions constituting reasonably perceived violations" of the environmental acts, engages in protected activity. Similarly, expressing concerns to the employer that constitute reasonably perceived threats to environmental safety is protected activity under the environmental whistleblower protections.
The employee need not prove that the hazards he or she perceived actually violated the environmental acts. Nor must an employee prove that his assessment of the hazard was correct. And we have also held that an employee need not prove that the condition he or she is concerned about has already resulted in a safety breakdown. On the other hand, a complaint that expresses only a vague notion that the employer’s conduct might negatively affect the environment is not protected. Nor is a complaint that is based on numerous assumptions and speculation.
USDOL/OALJ Reporter at 8 (citations omitted).
[Nuclear and Environmental Whistleblower Digest XII C 4] PROTECTED ACTIVITY UNDER THE CAA; COMMUNICATION TO RESPONDENT OF REASONABLE BELIEF OF RELEASE INTO AMBIENT AIR NOT REQUIRED TO ESTABLISH PROTECTED ACTIVITY, ALTHOUGH IT MAY BE RELEVANT TO ISSUE OF CAUSAL RELATIONSHIP BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION
In Knox v. USDOL, No. 04-2486 (4th Cir. Jan. 17, 2006) (case below ARB No. 03-040, ALJ No. 2001-CAA-3), the Fourth Circuit reversed the ARB's finding that, because the CAA is concerned with the pollution of "ambient air," i.e., air external to buildings, and the Complainant only complained of asbestos within his workplace, he did not engage in protected activity under the CAA. The ARB had announced that for the Complainant to establish that he engaged in CAA protected activity he must prove that when he expressed his concerns about the asbestos he reasonably believed that the Respondent was emitting asbestos into the ambient air. In its decision, the ARB pointed to evidence that the Complainant's complaints to management were only about asbestos in the workplace generally, as opposed to the potential for asbestos being emitted into the ambient air, and the Complainant's testimony that he observed asbestos escaping through exhaust fans did not establish that he ever told the Respondent's officials about the exhaust fan.
The Fourth Circuit found that
the ARB altered its protected activity standard from an inquiry into Knox's reasonable beliefs to a requirement that Knox actually conveyed his reasonable beliefs to management. Although the contents of Knox's complaints may provide evidence of his reasonable beliefs, it does not follow that he must have necessarily conveyed a notion to have reasonably believed it, as the ARB demanded of him. Indeed, in the very first sentence of this paragraph, the ARB seemed to accept as true, evidence that Knox did, in fact, reasonably believe that asbestos was emitted into the ambient air. Given the standard that the ARB initially announced, requiring Knox to have reasonably believed that asbestos was being emitted into the ambient air, and the ARB's acceptance that Knox observed asbestos escaping into the ambient air, we conclude that Knox has engaged in a protected activity under the CAA as interpreted by the ARB.
Slip op. at 6 (footnote omitted). The court therefore remanded for further proceedings. The court noted that it was only holding that the ARB's standard for determining whether the Complainant engaged in protected activity did not require the Complainant to convey his reasonable beliefs to management, and that the Respondent's awareness of his complaints may be relevant in regard to causal connection between protected activity and the adverse action.
The court also noted that it was
not convinced that a reasonable belief of a release into the ambient air is even the correct standard in all cases under the whistleblower provision of the CAA. There are several ways to violate the CAA and its implementing regulations without releases into the ambient air. See, e.g., 42 U.S.C. § 7412(h)(1) (allowing EPA to establish work practice standards for pollutants such as asbestos); 40 C.F.R. § 61.150 (setting forth standards for "waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations" involving asbestos, some of which can be violated without releases of asbestos into the ambient air); United States v. Ho, 311 F.3d 589, 594-95 (5th Cir. 2002) (discussing work practice standards involving asbestos). Thus, depending on the circumstances, an employee could reasonably believe his employer was violating the CAA, even if no release into the ambient air occurred.
[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; ONCE THE RESPONDENT HAS ADDRESSED THE COMPLAINANT'S SAFETY CONCERNS TO THE EXTENT THAT IT IS NO LONGER REASONABLE FOR THE COMPLAINANT TO CONTINUE TO RAISE THE SAME CONCERNS, NEW COMPLAINTS ARE NO LONGER PROTECTED ACTIVITY
In Williams v. USDOL, No. 03-1749 (4th Cir. Nov. 18, 2005) (per curiam) (unpublished) (case below ARB No. 01-021, ALJ No. 2000-CAA-15), the Complainant was a school teacher and the Respondent was a school system. The Complainant became concerned that certain school buildings contained unsafe levels of lead and asbestos, and made complaints to regulatory groups and aired her concerns in public forums. After being discharged for the manner in which she had aired her concerns, the Complainant filed employee protection complaints with the Department of Labor under the SDWA, TSCA, CAA, SWDA, CERCLA and FWPCA. The Fourth Circuit Court of Appeals found that substantial evidence supported the Department of Labor's dismissal of the complaint. The court agreed with the Department that, although the Complainant initially engaged in protected activity in raising concerns about lead in schools, important steps had been taken at each school in response to those concerns to ensure the safety of students and staff. The court wrote that "once her concerns were addressed ... it was no longer reasonable for her to continue claiming that these schools were unsafe and her activities lost their character as protected activity." Slip op. at 15. In addition, the court affirmed the Department's finding that even if the Complainant's actions were protected activity, the Respondent had raised a legitimate, non-retaliatory and nondiscriminatory reason for suspending and later dismissing the Complainant -- that she had obtained unauthorized access to the list of names and addresses of parents. One member of the Fourth Circuit panel dissented.
[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; EMPLOYEE'S REASONABLE BELIEF OF EXISTENCE OF ENVIRONMENTAL HAZARD
In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ARB rejected the Respondent's assertion that the Complainant's complaints about environmental hazards were not protected activity because they did not specify violations of the federal environmental laws. The Board wrote: "An employee engages in protected activity when he reports actions that he reasonably believes constitute environmental hazards, irrespective of whether it is ultimately determined that the employer's actions violate a particular environmental statute. Oliver v. Hydro-Vac Services, Inc., No. 91-SWD-00001, slip op. at 9 (Sec'y Nov. 1, 1995)." Slip op. at 5.
[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; AFTER THE RESPONDENT HAS ADDRESSED THE ENVIRONMENTAL CONCERNS RAISED BY THE COMPLAINANT, THE COMPLAINANT'S RAISING THOSE SAME CONCERNS AGAIN MAY NOT BE PROTECTED ACTIVITY
In Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB assumed for purposes of weighing the merits of the Complainant's complaint that an e-mail sent by the Complainant to everyone at the facility at which he was employed was protected activity, even though the ALJ had concluded that it was not, where the Board found it more expeditious to decide the case on other grounds (also, the Complainant had established several other protected activities). The Board, however, noted that at the time he sent the e-mail, the Respondent had already investigated the Complainant's safety and environmental concerns and complaints. Thus, "a viable argument may be raised that [the Complainant's] attachment of [prior e-mails in which he had raised safety concerns] to [the later, post investigation e-mails] was not protected, since [the Complainant] would seemingly no longer have a reasonable, good faith belief that [the Respondent] had not addressed the safety and environmental hazards he raised." USDOL/OALJ Reporter at n.5 (citations omitted).
[Nuclear & Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; REPORT OF PAINT OVERSPRAY INTO AMBIENT AIR; COMPLAINANT'S MOTIVE FOR MAKING REPORT NOT RELEVANT
In Smith v. Western Sales & Testing, ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004), the Complainant's primary motive for lodging complaints about the Respondent's painting operation was that paint overspray was damaging his vehicle. Nonetheless, the Complainant's complaint included concerns about paint fumes released into the ambient air, which the ARB concluded was an action to carry out the purposes of the CAA. The Board noted that it was well established that a whistleblower's motives need not be concern for the environment; rather, the relevant issue is whether the complainant's belief that the respondent is violating the environmental laws was reasonable. The ARB disagreed with the ALJ that the Complainant was required to establish that the release of pollution was adequate to trigger a violation of the CAA. The ARB also noted that pro se pleading should be construed liberally.
[Nuclear & Environmental Whistleblower Digest XII C 4] PROTECTED ACTIVITY; MAILING AND CIRCULATING LETTERS CONTAINS UNFOUNDED ALLEGATIONS IS NOT PROTECTED
In Williams v. Baltimore City Public Schools System, ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), Complainant was a mathematics teacher who alleged that she was suspended and later dismissed for reporting numerous environmental safety and health complaints to both the school system and to government agencies. The ARB affirmed the ALJ's finding that, although Complainant had engaged in many activities that the Acts protect, Complainant was not engaged in protected activity when she mailed a letter to students' parents erroneously stating that water in one of the schools contained lead and circulated similar letters to staff, students, and parents containing unfounded and sensationalized allegations about lead and asbestos hazards at three other schools.
[Nuclear & Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE PERCEPTION; NRC APPROVAL OF FACILITY'S PROCEDURE DOES NOT NECESSARILY RENDER COMPLAINANT'S CONCERNS UNREASONABLE
NRC approval of a security restructuring plan at a nuclear facility does not necessarily render a complainant's raising of security concerns about the plan unreasonable. Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001).
[Nuclear & Environmental Digest XII C 4]
ACTUAL BELIEF AND REASONABLE BELIEF THAT ENVIRONMENTAL
STATUTES WERE BEING VIOLATED BY RESPONDENT
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ
No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB ruled that in order for
Complainant's activities to be protected under 29 C.F.R. § 24.1(a), Complainant must
prove that he actually believed that Respondent was violating environmental laws
and that such belief was reasonable in other words, there is both a subjective
and objective element to Complainant's belief that Respondent was violating the law.
Respondent contended that Complainant's lack of knowledge of the specific requirements
of the TSCA and the CAA precludes protection under those statutes. The member concluded
that "[a] requirement that employees independently ascertain the specific requirements of
environmental legislation applicable to the facility where they work before discussing
compliance issues with their employers would not serve the interest of encouraging 'employees to
come forward with complaints of health hazards so that remedial action may be taken.'"
Slip op. at 27, quoting Simon v. Simmons Industries, Inc., 1987-TSC-2, slip op. at 4
(Sec'y Apr. 4, 1994).
Respondent also contended that Complainant must prove that his activities were grounded
in a sincere desire to inform the public about violations of laws and statutes, as a service to the
public as a whole, based on Wolcott v. Champion International Corp., 691 F.Supp.
1052, 1059 (W.D. Mich. 1987). The ARB member rejected this contention, noting that
Wolcott was based on interpretation of a state whistleblower statute, and holding that the
Secretary of Labor's decision in Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan.
25, 1994), requiring that the whistleblower actually believe that the employer was acting in
violation of the environmental statute at issue addressed the concern that whistleblower
protection under Part 24 not be extended to knowingly false reports. The member also reviewed
the legislative history of the CAA and TSCA, and caselaw under similar whistleblower statutes,
and concluded that the Secretary's decisions in Minard and Oliver v. Hydro-Vac
Services, Inc., 1991-SWD-1 (Sec'y Nov. 1, 1995), that whistleblower motivation is not
relevant were well grounded.
[Nuclear & Environmental Digest XII C 4]
REASONABLE PERCEPTION OF VIOLATION OF UNDERLYING STATUTE
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB held that
To be protected under the whistleblower provision of an environmental
statute such as the CAA, an employee's complaints must be "grounded in
conditions constituting reasonably perceived violations of the environmental acts."
Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Sec. Dec. and Rem. Ord.,
Jan. 25, 1994, slip op. at 5; Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2,
Sec. Dec. and Ord., Aug. 17, 1993, slip op. at 26, aff'd, 1995 U.S. LEXIS 9164
(9th Cir. Apr. 25, 1995). The complainant must "have a reasonable perception that
[the respondent] was violating or about to violate the environmental acts."
Id. The issue is one of the reasonableness of the employee's belief."
Slip op. at 15. The ARB observed that "[t]he purpose of the CAA is to protect the
public health by preventing pollutants from fouling the ambient air. Employee complaints about
purely occupational hazards are not protected under the CAA's employee protection
provision. Minard, slip op. at 5-6. See also, Tucker v. Morrison & Knudson,
Case No. 94-CER-1, ARB Final Dec. and Ord., Feb. 28, 1997, slip op. at 5 (under environmental
acts, complaint about violations that related only to occupational safety and not environmental
safety were not protected). ... Thus, the key to coverage of a CAA whistleblower complaint is
potential emission of a pollutant into the ambient air." Slip op. at 15 (footnote omitted;
emphasis as in original).
Thus, in Stephenson, the ARB considered whether Complainant's complaints were based on a reasonable perception that the use of ethylene oxide to
sterilize devices used to measure the blood pressure of astronauts on the Space Shuttle would
result in emission of potentially harmful levels of ethylene oxide into the ambient air, and thus
constitute protected activity under the CAA (a TSCA complaint had earlier been dismissed
because sovereign immunity had not been waived under that Act). The ARB concluded that
there was not even a remote possibility of the escape of any significant amount of ethylene oxide
or the freon used as a carrier gas during sterilization into the ambient air, and therefore
Complainant's activity was not protected by the CAA.
CompareMelendez v. Exxon Chemicals Americas, ARB No.
96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000) (one member holds that fugitive emissions
or pursuant of information about reports on exposure to emissions may fall within the CAA
purpose of protecting air quality).
[Nuclear and Environmental Digest XII C 4]
PRIMA FACIE CASE; OCCUPATIONAL EXPOSURE NOT RELATED TO NUCLEAR
SAFETY
In Cox. v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ALJ
Feb. 8, 1999), the ALJ found that Complainants failed to establish that they engaged in protected
activity under the ERA, where their case was based on allegations that they were the victims of
cyanide intoxication related to an occupational exposure. The ALJ found that such exposure was
not related to nuclear safety and therefore not protected under the ERA. The ALJ alternatively
found that, even if the allegations were determined to fall under the ERA, Complainants' belief
that they were harmed by an occupational source of cyanide was unreasonable. The ALJ found
overwhelming evidence that there was no occupational source for cyanide exposure, and
therefore it was not objectively reasonable for Complainants to perceive that their illnesses were
caused by occupational exposure.
[Nuclear & Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE BELIEF OF COMPLAINANT; NOT
NECESSARY THAT RESPONDENT PROCEED TO ENGAGE IN ACTIVITY
COMPLAINED OF
In Timmons v. Franklin Electric
Coop., 1997 -SWD-2 (ARB Dec. 1, 1998), Complainant had verbally objected to
the burial of four oil barrels because he believed that the oil was contaminated and the barrels
were leaking. The ARB found that Complainant's belief was reasonable, and therefore protected
activity. The ARB rejected Respondent's contentions that in order to constitute protected
activity, it was necessary for it to have proceeded with the original plan to bury the oil barrels (in
fact, after Complainant's objection, the barrels were transferred to a disposal company) or to file
a more formal complaint.
[N/E Digest XII C 4]
PROTECTED ACTIVITY; REQUIREMENT OF REASONABLE PERCEPTION OF
VIOLATION OF ENVIRONMENTAL LAWS; SUBJECTIVE SPECULATION IS NOT
PROTECTED
In Kesterson v. Y-12 Nuclear Weapons
Plant, 95-CAA-12 (ARB Apr. 8, 1997), summary decision was
appropriate in
regard to factual allegations that did not establish protected activity. The
Board noted that the
employee protection provisions provide protection for making safety and health
complaints
grounded in conditions constituting reasonably perceived violations of the
environmental laws,
but not for an employee's mere subjective belief that the environment might be
affected. The
Board also noted that there is a distinction "between protected acts,
such as threatening to
file a citizens' suit under the environmental laws, and unprotected acts, such
as contacting the
government and the news media about mischarging by a government
contractor." The
Board observed that the Secretary had held that internal complaints about a
technical issue which
could only threaten the environment if many speculative events all occurred
was not
protected." 92-CAA-12 @ 3 (citations omitted). Thus, the following
matters were not
protected activity:
Complainant's mere friendship with another employee who is a
whistleblower
Complainant's truthful answers given in an internal investigation
into who ordered
the purchase of allegedly illegal surveillance equipment (Complainant's
theory was that
the allegedly illegal surveillance equipment could be used to spy on
whistleblowers)
Complainant's objections to allegedly illegal orders to remove
computer files from a
computer held in evidence in a state criminal case (although such actions
may be
protected by other laws)
Complainant's complaint about abusive treatment by a manager that was
not based
on the manager's fitness for duty, but the manager's military style of
supervision
Complainant's refusal to assist in an alleged scheme to fabricate
reasons to fire a
female employee (although such actions may be protected by other laws).
The Board noted that Complainant's allegation that he was interviewed by
Respondent's
attorneys investigating another whistleblower's complaint would be protected
activity, if proven.
PROTECTED ACTIVITY; UNDERLYING VIOLATION; REASONABLENESS OF
COMPLAINANT'S BELIEF [N/E Digest XII C 4]
The Respondent's status as a non-hazardous waste facility and
the Complainant's inability to specify the controlling EPA
regulations were not determinative of whether the Complainant
engaged in protected activity in Oliver v. Hydro-Vac
Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995). Rather,
the question was whether the Complainant's concerns were based on
a reasonable belief that the Respondent was violating the SWDA
and FWPCA. The Secretary noted that the Complainant believed
that certain soil received by the Respondent resulting from the
removal of an underground gasoline tank was hazardous to the
environment because it contained high levels of benzene. The
Secretary concluded that the Complainant's belief that the soil
posed a danger and that the Respondent was mishandling it in
violation of the SWDA and the FWPCA was reasonable, both legally
and factually, noting that Federal case law reveals that
confusion exists in delineating hazardous waste, and
particularly in regard to contaminated soil from underground
storage tanks.
In Oliver, it subsequently was discovered that
none of the soil had been landfilled. Nonetheless, the Secretary
in reviewing the evidence found that the Complainant's belief
that the soil had been landfilled illegally was reasonable. He
noted that [f]or purposes of the whistleblower statutes, it does
not matter whether the allegation was ultimately factually
substantiated. Slip op. at 12 n.4 (citations omitted).
XII C 4 Coverage under SWDA; mistake regarding
facts versus mistake regarding
the law
In Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y
Jan. 25, 1994), the issue arose of
whether the SWDA's whistleblower provision extends to situations
in which the employee is mistaken
regarding the facts but not to situations in which the employee
is mistaken regarding the law. In
Minard, the Complainant had erroneously believed
that antifreeze and used oil were
regulated as hazardous waste.
The Secretary concluded that the Complainant's internal
complaints to management were similar to
those which would fall under the Title VII section 704(a)
"opposition clause." Civil Rights Act
of 1964, 42 U.S.C. § 2000(e)-3(a). The Complainant was not
participating in a SWDA
enforcement action, but was opposing his employer's actions.
The ALJ had relied in part on certain Title VII case law
indicating that where the employer's alleged
action, even if it in fact happened just as the complainant
alleged, would not have been a violation of
the Act, then the employer cannot be found to have violated the
Act's whistleblower protection provision
if it retaliates against the complaining employee.
The Secretary, however, chose to follow another line of Title VII
authority indicating that
"opposition to an employer's actions which are reasonably
believed to violation Title VII is
protected, irrespective of whether it is ultimately determined
that the employer's actions did not violate
Title VII either because the employer did not do what was
complained about or because the actions the
employer took did not violate Title VII." Slip op. at
20-22, citing Berg v. La Crosse Cooler
Co., 612 F.2d 1041 (7th Cir. 1980); Parker v. Baltimore
& O.R. Co., 652 F.2d 1012,
1020 (D.C. Cir. 1981). The Secretary concluded that the same
approach under the SWDA's
whistleblower provision should be followed.
In sum, the Secretary held that "under the SWDA
whistleblower provision an employee's
reasonable belief that his employer is violating the Act
may--depending on the particular facts of the
case--be sufficient basis for a retaliation claim if the employer
allegedly takes action against that
employee because he [or she] expressed his [or her] belief,
irrespective of after-the-fact determinations
regarding the correctness of the employee's belief."
XII C 4 Reasonable perception of
violation
When a Complainant alleges a violation, it does not matter
whether the allegation is ultimately
substantiated; rather, it only needs to be "grounded in
conditions constituting reasonably perceived
violations of the environmental acts." Minard v. Nerco
Delamar Co., 92-SWD-1 (Sec'y Jan.
25, 1995), slip op. at 8.
Where the Complainant was an operator at a water treatment plant,
and one of his duties was to treat
the water so it could be released in accordance with state
regulations, and records were kept by the
operators to show compliance with the regulations, the
Complainant's allegation of record falsification
was sufficient to show a reasonably perceived violation of the
Act.
To establish protected activity, the employee need demonstrate
only a reasonably perceived violation of the underlying statute
or its regulations. Where Respondent was a power company, and
Complainant testified that he informed several managers and
executives that he believed there were statistical problems with
studies that the power company would submit to the state, since
the studies related to power plants for which the power plant had
NPDES permits issued under the WPCA, Complainant's concern about
a potential violation of the statute was reasonable. Abu-
Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y
Sept. 24, 1993).
XII.C.4. Reasonable perception
In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994), the Complainant, a process engineer, engaged in protected
activity by
raising protected internal concerns about whether
Respondent needed to obtain permits for its surface
impoundments and waste ponds and was suggesting further
consultation, testing, and core sampling.
Concerns regarding statutory reporting compliance
Raising internally the issue of whether Respondent had
dumped hazardous materials improperly and whether the
dumping and associated findings should be reported.
The Secretary noted that the last issues were grounded in
conditions constituting reasonably perceived violations of the
environmental acts and are protected.
Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1
(Sec'y Sept. 24, 1993), slip op. at 11-12; Johnson v. Old
Dominion Security, 86-CAA-3/4/5 (Sec'y May 29, 1991),
slip op. at 15.
Even though Respondent disagreed with the test results and with
Complainant's theory of why the ponds tested flammable,
Respondent does not show that Complainant's position was
unreasonable.
In addition, Complainant's pressing the issue was protected
conduct, even though he may have been tentative and uncertain
about the law.
See Passaic Valley Sewerage Comm'rs v. United States
Dept. of Labor, 992 F.2d 474, 479-80 (3d Cir. 1993)(all
good faith intracorporate allegations of perceived
discrepancies are fully protected); see also Yellow
Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th
Cir. 1992) (protection of internal complaints under the
analogous Surface Transportation Assistance Act is not
dependent on actually proving a violation).
XII.C.4. Reasonably perceived violations
In Crosier v. Westinghouse Hanford Co., 92-CAA-3
(Sec'y Jan. 12, 1994), the Complainant testified that in the
past, he made reports and complaints to various government
agencies concerning a pesticide dump, and explosive devices
(land mines or practice land mines) located in a public access
area of the Respondent's nuclear reservation.
The Secretary found that a pesticide dump would appear to come
within the SWDA definition of "solid waste," which
includes "discarded material, including solid, liquid,
semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural
activities," with certain exclusions. 42 U.S.C. §
6903(27) (1988); see also 40 C.F.R. § 255.1. The
Secretary also concluded that ordnance also could be covered, if
it resulted from commercial activities and if it were discarded.
The Secretary also noted that a complainant under an employee
protection provision need not prove an actual violation of the
underlying statute. SeeYellow Freight System, Inc. v.
Martin, 954 F.2d 353, 357 (6th Cir. 1992). Rather, an
employee's complaint must be "grounded in conditions
constituting reasonably perceived violations" of the
environmental acts. Johnson v. Old Dominion Security, 86-
CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 15.
Construing the SWDA broadly in this case, the Secretary found
that the complaint was grounded in conditions constituting
reasonably perceived violations of the SWDA and that the
Complainant stated a valid complaint under the SWDA.
XII.C.4. CAA; Absence of allegation of deterioration of
air quality
In Crosier v. Westinghouse Hanford Co., 92-CAA-3
(Sec'y Jan. 12, 1994), the Complainant testified that in the
past, he made reports and complaints to various government
agencies concerning a pesticide dump, and explosive devices (land
mines or practice land mines) located in a public access area of
the Respondent's nuclear reservation. The Secretary found that
such complaints or reports, do not appear to come within the
sphere of activities protected under the Clean Air Act, since
there was no allegation or evidence that the ordnance or the
pesticides might cause a deterioration in air quality.
XII C 4 Reasonable perception standard
Most courts recognize internal complaints to managers as
protected activity under the environmental protection provisions.
[citations omitted] Further, internal quality complaints may be
so protected, and Complainant need not prove an actual violation
of law occurred. Nonetheless, it is not enough that the employee
believe that the environment may be negatively impacted by the
employer conduct; rather an employee's complaints must be
"grounded in conditions constituting reasonably perceived
violations" of the environmental acts. Johnson v. Old
Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991).
See also Aurich v. Consolidated Edison Co., 86-ERA-2
(Sec'y Apr. 23, 1987) (remand order).
The Secretary's decisions finding protected activity often
illustrate an experiential basis for the employee's belief that
an employer is violating an environmental act. For example, in
both the Dysert v. Westinghouse Electric Corp., 86-ERA-39
(Sec'y Oct. 30, 1991) and Guttman v. Passaic Valley Sewerage
Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992), aff'd,
Passaic Valley Sewerage Comm'rs v. United States Dept. of
Labor, 992 F.2d 474 (3d Cir. 1993) cases, the employee's
protected activities consisted of complaints that certain systems
already in use violated environmental statutes.
As a condition of federal funding, the WPCA requires a
fair allocation of user fees to assure that each recipient
of waste treatment services pays its proportionate share of
the costs of operation of a waste treatment plant. Based on
experience with the sampling technique his employer used to
calculate user charges, Guttman complained that the system
did not comport with the WPCA's explicit fairness
requirement.
In Dysert, the internal complaint of an engineer
engaged in testing certain instruments installed at a
nuclear power plant constituted protected activity under the
ERA.
See also Nichols v. Bechtel Construction, Inc.,
87-ERA-44 (Sec'y Oct. 26, 1992) (ERA protects employee's
questioning of foreman about safety procedures being used to
examine tools), appeal dismissed, No. 92-5176 (11th
Cir. Apr. 15, 1993).
In the instant case, however, Complainant did not base his fear
of a potential "bug" in a planned computer program on
either an existing computer program or on its use in any specific
device (a gas detector); rather, Complainant questioned quality
before anyone had begun to create the program. The Secretary
found that Complainant's assumptions about the probability of a
bug and the after effects of that assumed bug to be too numerous
and too speculative for him reasonably to have perceived that
Respondent was about to violate one of the environmental acts.
Hence, Complainant's quality complaints were not protected under
the CAA, TSCA or CERCLA.
Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug.
1, 1993).
XII C 4 Report of perceived wrongful conduct
In Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-
1, (Sec'y Sept. 24, 1993), Complainant discovered flaws in data
and statistical analyses in three studies prepared by Respondent
for possible use in support of obtaining a license for a future
generating station and to contradict the State's conclusion that
the cooling structure at one plant caused unacceptable
environmental impact in receiving waters. These studies were
voluntarily prepared by Respondent and upon hearing Complainant's
concerns, Respondent took measures to correct flaws.
The Secretary disagreed with the ALJ's finding that the
Complainant's action of reporting flaws in the study may not be
protected activity under the Act and determined that to establish
protected activity, a complainant must demonstrate only that a
reasonably perceived violation of the underlying statute or its
regulations is necessary.
XII C 4 Reasonable perception of violation as
protected activity
To be covered under the employee protection provision, a
complaint need only be grounded in conditions constituting a
reasonably perceived violation of the underlying act. See
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th
Cir. 1992); Johnson v. Old Dominion Security, 86-CAA-3
(Sec'y May 29, 1991), slip op. at 15; Aurich v. Consolidated
Edison Co., 86-ERA-2 (Sec'y Apr. 23, 1987), slip op. at 4.
Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992) (ALJ had misstated that there had been
an admission by the owner of an oil field of a violation of the
FWPCA because there was no evidence of such an admission in the
record; misstatement, however, was not material).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
XII C 4 Possible violations
In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3
(ALJ Nov. 29, 1993) (order denying respondent's motion for
summary decision), Respondent asserted in a motion for summary
decision that "[i]n order for CERCLA to apply to the alleged
salt release on [the day Complainant allegedly engaged in
protected activity], there must have been a release of hazardous
substances in a reportable quantity, CERCLA § 103(a), 42
U.S.C. § 9603(a)"; that the E.P.A. found that "any
salts which were released from the stack contained a total
equivalent value for dioxin of 247 parts per trillion (ppt), with
metals in the low parts per billion range"; that CERCLA
requires the report of releases of one pound of dioxin or
greater; and that since Respondent's calculations show that this
amount was not released, CERCLA does not apply.
The ALJ noted that
The Secretary of Labor and the Federal courts
considering this issue have found that complaints
regarding "possible violations," Kansas
Gas & Elec. Co., 780 F.2d 1505, 1512 (10th Cir.
1985) cert. denied, 478 U.S. 1011, 106 S. Ct.
3311 (1986), as well as "quality problems,"
Mackowiak v. University Nuclear Sys., Inc., 735
F.2d 1159, 1162 (9th Cir. 1984), are considered
protected activity. Therefore, the fact that an
employee may be mistaken as to whether an employer's
actions were actual violations is not dispositive of
the issue of whether the employee engaged in protected
activity. In addition, the issue does not turn on
whether the employee is actually successful in proving
a violation. Rather, the primary consideration is
whether the complaint was based upon possible
violations. See Yellow Freight Sys., Inc. v.
Martin, 954 F.2d 353, 357 (6th Cir. 1992).
Accord Richard Adams, No. 89-ERA-3 (Sec'y Aug.
5, 1992).
The ALJ reviewed the circumstances and found that it was
reasonable for Complainant to have believed that a violation was
taking place.
XII C 4 Validity of underlying complaints
In Guttman v. Passaic Valley Sewerage
Commissioners, 85-WPC-2 (Sec'y Mar. 13, 1992), the
Complainant was employed by the Respondent, a water treatment
facility, as as the head of a laboratory that analyzed water
samples pursuant to an ad valorem user charge system in
which the users of the facility took their own water samples.
Over a period of years, the Complainant reported extensively to
PVSC officials that the user charge system violated the FWCPA.
The Complainant was subsequently terminated from his employment
with PVSC.
The Secretary held that the Complainant's criticism of the user
charge system to his supervisors rather than an outside agency
was protected activity even under Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984). PVSC is a public
agency in the State of New Jersey whose commissioners are
appointed by the governor and confirmed by the state senate. The
record shows that Complainant reported violations not only to his
immediate superiors, but also, directly and indirectly to the
full commission, which having some responsibility under the FWCPA
could be viewed as a "competent organ of government"
within the meaning of Brown & Root, 747 F.2d at 1036.
Affirmed by the Court of Appeals for the Third Circuit. 992 F.2d
474 (3rd Cir. 1993).
Employee filed claim with Department of Labor, alleging that his
job transfer was the result of deliberate discrimination by
employer (TVA) against him due to his participation in the NRC
inspection process. The Secretary awarded relief to employee.
Both employee and TVA sought review of the Secretary's decision.
The court stated that, "[t]he purpose of the Act is to
prevent employers from discouraging cooperation with NRC
investigators, and not merely to prevent employers from
inhibiting disclosures of particular facts or types of
information." Thus, the court held that employee did not
need to show that he disclosed unique evidence to the NRC, or
evidence that TVA attempted to hide, in order to make out his
case. DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983). Also, the court held that employee did not
need to prove that he was treated differently from other
similarly situated participants in the NRC investigation.
Id.
PROTECTED ACTIVITY; UNDER ERA, NEED NOT HAVE DIRECT EFFECT ON
NUCLEAR SAFETY; COMPLAINANT NEED NOT DETERMINE WHETHER HAZARD
HAD ALREADY BEEN DISCOVERED BY RESPONDENT OR REPORTED TO NRC
[N/E Digest XII C 5]
It is not necessary, in order for an employee's action to be
considered
protected under the ERA whistleblower provision, for that action to have
a direct effect
upon nuclear safety. Thus, for example, it matters not that an employee
complains about
a hazard that has already been corrected, or complains to the NRC about a
condition that
the employer is already aware of. The complaint may still be considered
protected
activity. If, in order to come within the protection of the ERA's
whistleblower provision,
an employee had to determine whether the condition he or she wanted to
report had
already been discovered by the employer, or was already being addressed
by the NRC,
employees would be discouraged from bring potentially significant
complaints to the
attention of authorities. If [Respondent's] theory were correct, an
employer who had
created a nuclear hazard and had been cited for it by the NRC, could
retaliate with
impunity against an employee who belatedly reported that violation to the
NRC. The
language of Section 211 does not require such a far-fetched result.
...[7]
______
[7] That is not to say that an employer's actions to correct a
hazard are not relevant
in a retaliation case. The fact that a hazard has already been addressed
by an employer
before an employee complains about it might be highly relevant to the
issue of the
employee's motive to retaliate.
PROTECTED ACTIVITY; COMPLAINANT NEED NOT BE A SUBSTANTIAL
SOURCE OF INFORMATION
[N/E Digest XII C 5]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
Complainant and other employees were emptying an aqueous waste
tank when a drum of waste material fell and a portion of its
contents were spilled. A shift engineer who investigated the
incident talked to employees involved, including Complainant.
Complainant testified:
. . . It was getting close toward the end of the day and
Mr. Winchester came up to me and he said, "Dave, what
are you talking about?" I said, "What do you
mean? What are you talking about?" He said,
"That spill." I Said, "You mean the one
Friday?" And he says, "Was it a bucket, a gallon,
or how much was it? How big of a spill was it?" I
said, "Mr. Winchester, I can't tell you. There's a gag
order and I can't speak to you. I'll have to refer you to
my supervisors and management because my job is on the
line." And he understood.
Slip op. at 3, quoting transcript of hearing. The ALJ held
that Complainant was not a party to the investigation of the
incident and therefore could not have engaged in protected
activity. The Board, although agreeing that Complainant
"did not provide substantial information concerning the
incident, [concluded that] his statement to Winchester confirming
that a spill had occurred was a clear indication that further
investigation of the incident was necessary, and thus was
protected.
PROTECTED ACTIVITY; RELEVANCE OF OTHER WORKERS HAVING RAISED
SIMILAR CONCERNS [N/E Digest XII C 5]
In Diaz-Robainas v. Florida Power & Light
Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary noted
that the fact that other workers raised similar internal safety
concerns during the course of performing their jobs does not
render the Complainant's concerns unprotected.
XII C 5 PROTECTED ACTIVITY; SIMILAR CONCERNS RAISED BY OTHER
WORKERS IN PERFORMANCE OF JOB
The fact that many other workers raised similar internal
safety concerns in the course of performing their jobs, although
relevant to causation issues, does not render a complainant's
concerns unprotected. Gibson v. Arizona Public
Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18,
1995), citing Jopson v. Omega
Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995).
When a complainant uses intemperate language or engages in
impulsive behavior associated with the exercise of whistleblower
rights, there should be a balancing between the right of the
employer to maintain shop discipline and the "heavily
protected" rights of employees -- to fall outside statutory
protection, an employee's conduct actually must be indefensible
under the circumstances. While employees are protected when
presenting safety related complaints, they do not have carte
blanche to choose the time, place and/or method of making those
complaints. An otherwise protected employee is not automatically
absolved from abusing his or her status and overstepping the
defensible bounds of conduct, even when provoked. Carter
v. Electrical District No. 2 of Pinal County, 92-TSC-11
(Sec'y July 26, 1995) (finding that Complainant's behavior may
have caused some workplace disruption, but was not indefensible
under the circumstances).
[Nuclear and Environmental Whistleblower Digest XII C 6
PROTECTED ACTIVITY; MANNER OF RAISING; DELIBERATE AND REASONED SARCASM AND SATIRE IS NOT THE TYPE OF CONDUCT PROTECTED BY THE "LEEWAY FOR IMPLUSIVE BEHAVIOR" PRINCIPLE
SeeSayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), supra at Digest IX B 2 b viii.
PROTECTED ACTIVITY; MANNER OF EXPRESSION
[N/E Digest XII C 6]
In Talbert v. Washington Public Power
Supply System, 93-ERA-35
(ARB Sept. 27, 1996), Complainant's manner of raising a safety concern was not
so disruptive as
to be indefensible under the circumstances, and therefore did not lose
protection under the ERA
even though Respondent felt that Complainant should have raised the concern
through a
"Problem Evaluation Report" or by bringing it to management's
attention "at
an
opportune time, quietly and privately." Complainant had raised a germane
concern during
a "question and answer" period. Complainant's raising of the
concern, however, was
problematic for Respondent because it contradicted the message Respondent was
trying to
convey. The NRC has expressed concern that engineers improperly felt that
emergency
operating procedures (EOP) were merely guidelines, and Complainant's question
was premised
on a certain EOP being, in his view, unsafe. The timing was "poor"
in Respondent's
view because the "message" during the meeting had been strict
compliance with the
procedures. The Board, however, found that there was nothing objectively
disruptive about
Complainant's question under the circumstances.
XII C 6 Manner of complaint; intemperate language and
impulsive behavior
When considering the effect of an employee's intemperate language
and impulsive behavior associated with the exercise of
whistleblower rights, the right of the employer to maintain
discipline in the workplace must be balanced against the
statutorily protected rights of the employee. To fall outside
statutory protection, an employee's conduct actually must be
indefensible under the circumstances. Martin v. The
Department of the Army, 93-SDW-1 (Sec'y July 13, 1995)
(Complainant's behavior not indefensible where his actions may
have disrupted a demonstration and an inspection briefly, but the
Complainant did not persist, and the events continued).
In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1
(Sec'y Nov. 1, 1995), the Complainant was protected in that he
was about to contact the authorities about his concerns. 42
U.S.C. § 6971(a); 33 U.S.C. § 1367(a).
In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Complainant was a project manager for a utilities company. The ALJ found that the Complainant had raised concerns with management about the capacity of a projected well to support the water needs of the community, including the maintenance of sufficient water pressure to put out fires. Although acknowledging that the SDWA is not specifically concerned with the subject matter of the well capacity and water pressure, the ALJ found that the Complainant had engaged in protected activity under the SDWA because his complaints related to public safety, "which is a main concern of the environmental whistleblower statutes generally." On review, the ARB stated that it would not review this finding because the Respondent had not challenged it. Nonetheless, the ARB noted that the complaint as described in the ALJ's decision did not implicate the coverage of the SDWA's enumerated protected activities (an SWDA whistleblower proceeding or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State proceeding.) Thus, the ARB observed that the ALJ's finding of protected activity was "highly questionable."
[Nuclear & Environmental Digest XII D 1 a]
PROTECTED ACTIVITY; COMPLAINT ABOUT POOR PHYSICAL CONDITIONING OF SECURITY GUARDS AT NUCLEAR FACILITY; ENVIRONMENTAL AND NUCLEAR WHISTLEBLOWER COMPLAINTS
In High v. Lockheed Martin Energy Systems, Inc., ARB No. 98-075, ALJ No. 1996-CAA-8 (ARB Mar. 13, 2001), Complainant, a Physical Training Coordinator, complained to his employer about the failure of some security guards at the Oak Ridge Operations Office fully to participate in the exercise program required by DOE regulations. In dismissing the complaint under Fed. R. Civ. P. 12(b)(6) -- failure to state a claim upon which relief can be granted -- as to the environmental whistleblower provisions, the ARB wrote:
Neither the environmental acts nor their implementing regulations have any provisions that govern the physical conditioning of security guards; thus on its face, High's complaint under the environmental acts does not point to a specific statutory or regulatory provision allegedly violated by any of the respondents. High attempts to bootstrap his complaint into a protected activity by asserting that (1) unfit guards will be unable to deter the theft of nuclear material; (2) this nuclear material could find its way into a nuclear bomb; (3) the nuclear bomb may be detonated in this country; and (4) the resulting explosion would be harmful to the environment. .... Because High has offered nothing other than speculation, which we have found insufficient as a matter of law to constitute protected activity, his concerns are not protected under the environmental acts.
The ARB, however, found that the complaint could survive a Fed. R. Civ. P. 12(b)(6) motion under the ERA whistleblower provision, because the physical fitness program at DOE's Oak Ridge facility is mandated by DOE regulation, and the ERA whistleblower provision expressly protects employee concerns about the Atomic Energy Act or regulations promulgated thereunder. Thus, the ARB found that Complainant's allegations might constitute protected activity under the ERA - a close call, but sufficient to survive the very charitable standard applicable to 12(b)(6) motions.
[Nuclear and Environmental Whistleblower Digest XII D 1 a]
PROTECTED ACTIVITY; ENVIRONMENTAL COMPLAINTS MUST ENCOMPASS PUBLIC SAFETY AND HEALTH OR THE ENVIRONMENT; ERA COMPLAINTS ABOUT EXPOSURE TO RADIOACTIVITY HOWEVER ARE COVERED REGARDLESS OF WHETHER EXPOSURE TO THE PUBLIC IS IMPLICATED
In Devers v. Kaiser-Hill Co., ARB No. 03-113, ALJ No. 2001-SWD-3 (ARB Mar. 31, 2005), the ALJ had held that the Complainants had not engaged in protected activity under the whistleblower provisions of the ERA, TSCA, SWDA and CERCLA because the complaints related only to safety in the workplace failing under the OSH Act. The ARB affirmed the ALJ in regard to the three environmental statutes, but reversed in regard to the ERA. The ARB found that the OSH Act is preempted by the ERA where the matter involves non-federal employees whose working conditions are governed by a federal agency having statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. See 29 U.S.C.A. § 653(b)(1). In the instant cases, the Complainants were employees of a company that had contracted with the DOE to decontaminate and decommission a nuclear weapons parts plant. DOE has exercised statutory authority to regulate occupational safety or health at government-owned, contractor-operated facilities. In addition, the Board found that it had already ruled in Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ No. 1997-ERA-14, slip op. at 18-22 (ARB Nov. 13, 2003) -- a case involving workers who were decommissioning nuclear weapons -- that "employee concerns about exposure to radioactive sources are covered by the ERA, regardless of whether exposure to public at large is implicated." Id., slip op. at 24. See also Mosley v. Carolina Power & Light Co., 1994-ERA-23, slip op. at 4 (Sec'y Aug. 23, 1996) (involving the ALARA standards). In contrast, the ARB agreed with the ALJ that the environmental statutes "'generally do not protect complaints restricted solely to occupational safety and health, unless the complaints also encompass public safety and health or the environment.'" Devers, slip op. at 10, quoting Post v. Hensel Phelps Constr. Co., 1994-CAA-13, slip op. at 2 (Sec'y Aug. 9, 1995).
PROTECTED ACTIVITY; GENERAL SAFETY COMPLAINTS
[N/E Digest XII D 1 a]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board held that the ALJ had drawn too broad a conclusion by
stating that "the whistleblower provisions of the various
environmental statutes are intended to apply to the expression of
environmental concerns rather than general safety concerns."
Rather, the Board stated that "[u]nder the appropriate
conditions a general safety concern stated by an employee can
have an environmental impact such that it would be covered."
Slip op. at 5 (citations omitted).
A complaint or charge concerning an unsafe condition and its
investigation communicated to management or to the NRC is
protected under the ERA. Larry v. Detroit Edison
Co., 86-ERA-32 (Sec'y June 28, 1991).
XII D 1 a Safety complaint not related to nuclear or
radiation safety is not
protected under ERA
In Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y
Dec. 16, 1993), the Complainant
rejected welds on and reported failure to follow proper
procedures in the construction of sonarspheres.
These complaints were not related to nuclear or radiation safety.
The ALJ concluded that because the
Respondent was licensed by the NRC, all of its employment actions
were covered by the ERA's
whistleblower provision. The Secretary rejected this
interpretation, holding that Complainant's safety-
related activity must relate to nuclear safety to be protected
under 42 U.S.C. § 5851. Citing by
analogy, Aurich v. Consolidated Edison Co. of New York,
Inc., 86-CAA-2 (Sec'y Apr. 23, 1987)
(handling of asbestos in workplace; CAA only covers release of
asbestos into surrounding air, not as
an occupational hazard); Ellison v. Merit Systems Protection
Board, No. 92-3057, 1993 U.S.
App. LEXIS 27786 (D.C. Cir. Oct. 26, 1993) (Whistleblower
Protection Act complaint must be linked to
type of fraud, waste or abuse that WPA was intended to reach).
XII D 1 a Reporting violation and destruction of evidence
In McMahan v. California Water Quality Control Board, San
Diego Region, 90-WPC-1 (Sec'y July 16, 1993), Complainant
engaged in protected activity when he reported a carpet cleaning
company's regulatory violation and destruction of evidence to a
member of Respondent's Hazardous Waste Crimes Task Force.
Complainant was subjected to adverse action when he was
subsequently reprimanded for failing to consult his supervisor
before contacting the Task Force.
The proffered motivation for the reprimand was pretextual, the
Secretary noting that FWPCA section 1367 protected Complainant
regardless of whether he first consulted his supervisor. Cf.
Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d
563, 565 (8th Cir. 1980), cert. denied, 450 U.S. 1040
(1981) (hospital radiation safety officer was protected under ERA
despite failure to follow normal procedure of bringing problems
to the attention of responsible hospital personnel before
reporting to the NRC).
XII D 1 a Complainant's concern over his own physical
limitations as a safety issue
In Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that the
Complainant engaged in protected activity when he raised a
concern in 1985 with respect to his working with mechanical hands
(the Complainant had a problem with depth perception and was
spilling radioactive materials), and when he raised a concern
about a co-worker's soil sampling preparation procedures in
November 1989. The record established that animus to the
Complainant resulted from this activity, particularly on the part
of two employees, and that this animus likely caused retaliation
which evolved into a hostile work environment (including
providing him with office space in rooms used as waste
depositories).
The ALJ also found that the Respondent's articulated reasons for
the adverse actions were pretextual, and that even if the dual
motive analysis was applied [t]he hostility to Complainant has
been so pervasive that it precludes the conclusion that the
action complained of would have been taken for the reasons
asserted by [the Respondent], even absent [the Complainant's]
activity." Slip op. at 77.
XII D 1 a Report of gas odor
Internal complaints are within the protected scope of the SWDA.
Thus, a Complainant's complaints of a gas odor brought to the
attention of the Complainant's supervisor prior to the decision
to discharge her established a prima facie case. Monteer
v. Casey's General Stores, Inc., 88-SWD-1 (Sec'y Feb. 27,
1991).
XII D 1 a Definition; protected activity
Complainant, a vendor evaluation group leader, engaged in
protected activity when, purportedly against his employer's
wishes, he disqualified or refused to requalify, vendors not
adhering to federal regulations governing quality assurance.
See 10 C.F.R. Part 50. Shusterman v. Ebasco Servs.
Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
The whistleblower provisions of the environmental statutes
protect employees who make safety and health complaints to their
own employers as well as to government agencies. Making health
and safety complaints to the general public, however, without a
demonstration that the employee is about to file a complaint or
participate or assist in a proceeding is too remote from the
purposes of the environmental acts to be a protected activity.
Simon v. Simmons Industries, Inc., 87-TSC-2 (Sec'y
Apr. 4, 1994).
In Simon, the Secretary distinguished Nunn v.
Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987) (contact with
public interest group that evidences intent to testify or assist
in a proceeding is protected; mere contact is not protected);
Landers v. Commonwealth-Lord Joint Venture, 84-ERA-5 (ALJ
May 11, 1983), adopted (Sec'y Sept. 9, 1983) (internal
complaints protected; protection not lost because complainant was
outspoken and expressed his complaints to his fellow employees);
Wedderspoon v. City of Cedar Rapids, Ia., 80-WPC-1 (Sec'y
July 28, 1980) (nothing in Secretary's decision about protecting
speech to the public; ALJ decision no longer available).
[Editor's note: The ALJ's decision in Wedderspoon is
available. In that case, Complainant had reported safety
concerns to a friend who was an "environmental
activist" and to the Des Moines Register -- both entities
that could be expected to act on the information provided. The
ALJ found that although Complainant did not directly contact
federal or state authorities, the causal connection between the
actions he took and the likely result was sufficient to fit
within the "caused to be . . . inititated" language of
the FWPCA. The Secretary adopted the ALJ's decision without
additional discussion. Judge Sobernheim's decision is reasoned,
based on legislative history and Title VII authority.]
[Nuclear & Environmental Whistleblower Digest XII D 1 b] PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id., USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; MUST IMPLICATE SAFETY DEFINITELY AND SPECIFICALLY
In Makam v. Public Service Electric & Gas Co., ARB No. 99-045, ALJ No. 1998-ERA-22 (ARB Jan. 30, 2001), Complainant listed eleven activities he believed constituted protected activity relating to his actions in regard to a change in a Technical Specification that, because of a new method for calculation of the containment dome's average temperature, resulted in a situation that forced Respondent to take emergency measures to avoid a shutdown. The ARB held:
To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Department of Labor, 134 F.3d 1292 (6th Cir. 1998). Makam never expressed to PSE&G officials a concern that the arithmetic method of calculating containment temperature was less "safe" than the volume weighted method that he endorsed. In fact, Makam has not proved that any of his actions were motivated by a belief that PSE&G was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks. As the ALJ found, "it cannot be determined from Complainant's testimony which method he himself advocated, and which method, if any, he believed would constitute a safety concern if implemented." 1998 ERA 22 and 26 @ 7. Thus, we cannot conclude that any of Makam's actions implicated safety definitively and specifically.
The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern. American Nuclear Resources, supra, citing Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997). Whistleblower provisions such as the ERA's are intended to promote a working environment in which employees are free from the debilitating threat of employment reprisals for asserting company violations of statutes protecting nuclear safety and the environment. They are not, however, intended to be used by employees to shield themselves from termination actions for non-discriminatory reasons. See Trimmer, supra. In our view, Makam has not shown any nexus between his actions and some identifiable safety concern. Consequently, Makam's conduct falls outside the scope of ERA protection, and we concur with the ALJ that the complaint should be denied.
[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; EMPLOYEE'S PERSONAL HEALTH CONCERN;
POTENTIAL RELEVANCE TO BOTH OSH ACT AND ENVIRONMENTAL ACTS
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB remanded the case to the ALJ primarily on the
ground that the ALJ's rulings excluded relevant evidence concerning activities engaged in by
Complainant related to his exposure and health concerns. The ARB held that "the ALJ
premised his conduct of the hearing on the mistaken view that [Complainant's] health concern
posed an occupational health issue that was solely relevant to the Occupational Safety and Health
Act (OSHA) and not to the environmental acts." The ARB held that "it is a matter of
well settled case law that actions that serve the environmental protection purposes of the TSCA,
the CAA and similar environmental statutes may begin with an employee's personal health
concern."
A concurring opinion by the Chair of the ARB noted that the ALJ had misinterpreted an
earlier ruling by the Secretary of Labor that Labor Department ALJs have no jurisdiction over
complaints under the OSH Act. This ruling did not compel the result that concerns raised under
the OSH Act and the environmental statutes are mutually exclusive, the concurrence noting the
example of TSCA record keeping requirements that would plainly include data that may overlap
OSHA concerns. [see also the lead opinion, slip op. at 18-23, in regard to the relevance of the
TSCA record keeping requirements].
[N/E Digest XII D 1 b]
PROTECTED ACTIVITY; TYPES OF ACTS PROTECTED MUST IMPLICATE
SAFETY DEFINITELY AND SPECIFICALLY
In American Nuclear Resources, Inc. v.
U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29,
1998) (case
below 92-ERA-37), the Sixth Circuit discussed the preliminary requirement that a complainant
establish that the ERA protected his or her conduct. The court wrote:
[A] court first must determine whether the ERA protects the
employee's acts. Building on the Act's language, courts have held that the ERA protects
many types of acts that implicate safety. For example, the ERA protects an employee
who files internal reports concerning regulatory violations. . . .
Despite this generally broad reading, courts limit the ERA
to protect only certain types of acts. To constitute a protected safety report, an
employee's acts must implicate safety definitively and specifically. . . .
The ERA does not protect every incidental inquiry or
superficial suggestion that somehow, in some way, may possibly implicate a safety
concern. . . .
Moreover, an employer may terminate an employee who
behaves inappropriately, even if that behavior relates to a legitimate safety concern. . . .
Slip op. at __ (citations omitted).
In American Nuclear Resources, Inc., some Radiation Protection
employees (RPs) sprayed the reactor cavity's walls to prevent airborne radiation, but delay
evidently resulted in particles contaminating Complainant; Complainant then complained to his
supervisor about "the stupid RP's not knowing what they were doing," even though
the RPs did not work for Respondent. The next day, Complainant underwent a "full
body
count" to measure his radiation level; after the test, Complainant requested a copy of the
body count but the RPs instead gave him an exposure report that contained the same
information.
There was conflicting testimony regarding whether Complainant had lost his temper during
these
incidents. Later on the day of the test and less than two weeks after Complainant had started
work for Respondent the decision was made to discharge Complainant. The ALJ and the
Secretary of Labor ruled that Respondent terminated Complainant because he questioned the
RPs
about safety, and, therefore violated the ERA. The Sixth Circuit reversed the DOL ruling.
The
court found that:
[Complainant] Sprague's conduct falls outside the scope
of ERA protection. His conduct lacks a sufficient nexus to safety concerns. Sprague did
the following things that possibly implicate safety: he complained about "the
stupid RP's not knowing what they were doing" after they waited too long to spray;
he grew angry at the RPs while they administered his full body count test; and, after the
test, he asked the RPs for a copy of the body count, even though he received a more
understandable exposure report.
Sprague, however, never alleged that ANR was violating
nuclear laws or regulations. He never alleged that ANR was ignoring safety procedures or
assuming unacceptable risks. He simply asked for a document, one that he had no right to
receive and one that contained little useful information. ... While Sprague's complaints
resulted in one set of additional body counts on the RPs, those tests ultimately revealed
no safety problem or health hazard. Sprague's conduct never led anyone to change,
probe, or even question ANR's safety procedures.
In cases where courts protected the employee's acts, the
employee typically alleged a safety concern that was both concrete and continuing. ...
Sprague complained about an isolated incident involving a wall spraying, not a
procedural hazard. A single act or inquiry may, of course, fall under the ERA's scope, but
that act must bear a closer nexus to safety than Sprague's conduct.
Slip op. at __ (citations omitted).
[N/E Digest XII D 1 b]
ATTRIBUTABLE SAFETY VIOLATION
In American Nuclear Resources, Inc. v.
U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29,
1998) (case below 92-ERA-37), the court held that, even assuming that Complainant's internal safety
complaint was protected activity under the ERA, Respondent did not retaliate for such actions
where Complainant's supervisor testified that she fired Complainant because of his
interpersonal problems, Complainant had complained primarily about the incompetence of workers who
were not employed by Respondent and whose errors could not be attributed to Respondent, and
therefore, Complainant's complaints alleged no safety breach by Respondent. Thus, the record
did not indicate that Complainant's conduct could have forced Respondent to change its
procedures or incur extra costs, and the court concluded that "[a]n employer would
hardly retaliate over such an insignificant sleight."
XII D 1 b Generalized request that the government
investigate health problems not identifying any
particular employer or statutory violation
Where the Complainant did no more than ask State and Federal
agencies and Congress to investigate his allegation that there
are unusual health problems at Oak Ridge, Tennessee, and did not
attribute these health problems to any particular business nor
did he contend that any illegal activity was occurring, the ALJ
in Reid v. Methodist Medical Center, 93-CAA-4 (ALJ
Mar. 29, 1993), found that the Complainant had not engaged in
protected activity. The ALJ recognized that a generic complaint
actually leading to an investigation under an environmental
statute of a particular employer may result in whistleblower
protection for a complainant, but found no such nexus here.
XII.D.1.b. Complaints relating only to workplace
Complaints that relate only to conditions at the work place and
do not touch upon general public safety and health are cognizable
only under the employee protection provision of the Occuptional
Safety and Health Act, 29 U.S.C. § 660(c)(1982).
Sawyers v. Baldwin Union Free School District, 85-
TSC-1 (Sec'y Oct. 24, 1994), citing, Aurich v. Consolidated
Edison Co. of New York, Inc., 86-CAA-2 (Sec'y April 23,
1987). slip op. at 4.
Complainant's statement to a person that he was considering
filing an environmental citizen suit is a protected activity,
since the environmental acts protect from discrimination
employees who threaten to enforce the acts. [citations omitted]
It was disputed whether this person was in Respondent's employ,
although it was undisputed that this person informed Respondent's
security officers of Complainant's activities. Crosby v.
Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993).
XII.D.1.c. Contacting EPA officials
Where the Complainant informs a manager that he had contacted EPA
officials during a spills conference and confirmed that the
Respondent should be reporting certain emissions under CERCLA,
the Complainant has engaged in protected activity. Dodd v.
Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994).
XII D 1 c Plan to go the NRC
Section 210(a)(1) of the ERA, 42 U.S.C. § 5851(a)(1),
explicitly protects an employee who is "about" to go to
the Nuclear Regulatory Commission with safety concerns.
Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1,
1988) (the employer, however, must know about the protected
activity for the complaint to be actionable).
XII D 1 c Threat to report safety issues
Internal complaints to managers and a union stewart are protected
activity under the ERA.
A threat to report safety issues to the NRC is protected activity
under the ERA.
Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994).
XII D 1 c Threat to make report to government agency as
protected activity
The whistleblower provisions protect preliminary steps to
commencing or participating in a proceeding when those steps
"could result in exposure of employer wrongdoing."
Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y Apr.
27, 1987), slip op. at 6. Since a complainant's threat to report
a chemical spill to local authorities, if proven, could result in
the exposure of wrongdoing, it may be protected. See Couty v.
Arkansas Power & Light Co., 87-ERA-10 (Sec'y June 20,
1988), adopting, (ALJ Nov. 16, 1987), reversed on other
grounds, 886 F.2d 147 (8th Cir. 1989); Cram v. Pullman-
Higgins Co., 84-ERA-17 (Sec'y Jan. 14, 1985), slip op. at 1
(in both cases, threat to make report to government agency
constituted protected activity).
[Nuclear & Environmental Whistleblower Digest XII D 1 d]
PROTECTED ACTIVITY; GOVERNMENT OFFICIAL WORKING WITHIN THE
SCOPE OF HIS OR HER DUTIES; GOVERNMENT OFFICIAL WHO TAKES CONCERNS
OUTSIDE THE CHAIN OF COMMAND
In Sasse v. U.S. Department of Justice,
1998 CAA 7 (ALJ May 8, 2002), Complainant was an attorney with the U.S. Department of
Justice who filed an whistleblower complaint based, inter alia, on Complainant's belief
that he was subjected to harassment and discrimination by various levels of his DOJ
supervisors, who were not only unsupportive, but also abusive to him, and made a conscious
effort not to prosecute certain environmental crimes that he believed should be prosecuted.
The ALJ's recommended decision, however, adopted Respondent's position that work performed
by a government official within the scope of his job description cannot be found to be protected
activity. Citing by analogy to a case arising under the Whistleblower Protection Act, the ALJ
wrote:
In Huffman v. OPM, 2001 WL 914869 (Fed. Cir.
Aug. 15, 2001), the Federal Circuit Court addressed the issue of whether a
complainant engaged in protected activity while carrying out assigned work
assignments through normal channels. Although the Court was interpreting the
Whistleblower Protection Act (WPA), 5 U.S.C.§ 2302, Respondent urges
that its findings should be adopted here. The case stands for the propositions
that "mere performance" of "required everyday job
responsibilities" is not protected disclosure, and an employee "cannot
be said to have risked his personal job security by merely performing his
required duties ... [A]ll government employees are expected to perform their
required everyday job responsibilities pursuant to the fiduciary obligation which
every employee owes his employer." Id. at 6, quotingWillis v. Dep't of Agriculture, 141 F.3d 1139, 1143, 1144 (Fed Cir.
1998). See also Horton v. Dep't of Navy, 66 F.3d 279, 282 (Fed. Cir.
1995). The court held that "reporting in connection with assigned normal
duties is not a protected disclosure covered by the Act." Id. See also,
Langer v. Dep't of Treasury, 2001 WL 1090206 (Fed. Cir. Sept. 19,
2001).
The ALJ, however, found that Complainant could claim protected activity if he proved that he
had gone outside the chain of command in reporting suspected problems. Thus, the ALJ found
that Complainant was engaged in protected activity when he was contacted by a Congressman's
office on a matter concerning a case he was working on relating to an airport expansion project,
and during that contact voiced his concerns about toxic conditions at the area of the proposed
expansion.
PROTECTED ACTIVITY; FAILURE TO FOLLOW ESTABLISHED CHANNELS OR
CIRCUMVENTION OF SUPERIOR
[N/E Digest XII D 1 d]
An employer may not, with impunity, discipline an employee for failing to
follow the
chain-of-command, failing to conform to established channels or circumventing
a superior, when
the employee raises a health or safety issue. ... Such restrictions on
communication would
seriously undermine the purpose of whistleblower laws to protect public health
and safety."
Talbert v. Washington Public Power
Supply
System, 93-ERA-35, slip op. at 8
(ARB Sept. 27, 1996) (citations omitted).
NRC STATEMENT OF POLICY
[N/E Digest I A 2 and XII D 1 d]
On May 14, 1996, the Nuclear Regulatory Commission issued a
policy statement "to set forth its expectation that
licensees and other employers subject to NRC authority will
establish and maintain safety-conscious environments in which
employees feel free to raise safety concerns, both to their
management and to the NRC, without fear of retaliation."
Freedom of Employees in the Nuclear
Industry To Raise Safety
Concerns Without Fear of Retaliation; Policy Statement,
61
Fed. Reg. 24336 (May 14, 1996). The policy statement, inter
alia, stresses that management should provide leadership in
this regard, that licensees have a responsibility for the acts of
their contractors, and that although free to come to the NRC at
any time, employees should normally raise concerns with the
involved licensee. The policy statement notes that the "NRC
should normally be viewed as a safety valve and not as a
substitute for raising safety concerns." 61 Fed. Reg. at
24340.
XII D 1 d PROTECTED ACTIVITY; BYPASSING THE CHAIN OF
COMMAND
An employee who bypasses the company's chain of command to
with a complaint about violation of an environmental law is
engaged in protected activity. Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995) (Complainant
informed school district about asbestos in roofing materials
prior to informing his boss).
XII D 1 d Failure to observe established
channels
In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar.
24, 1995), the Secretary held that
under the ERA it is not permissible to find fault with an
employee for failing to observe established
channels when making safety complaints. Pillow v. Bechtel
Construction, Inc., 87-ERA-35 (Sec'y
July 19, 1993), slip op. at 22, appeal dismissed, Bechtel
Construction Co. v. Secretary of Labor,
No. 93-4867 (11th Cir. 1993); see also Pogue v. United States
Dept. of Labor, 940 F.2d 1287,
1990 (9th Cir. 1991). Therefore, an allegation that the
Complainant was reprimanded for circumventing
the chain of command when he sent a letter to upper management
complaining of record falsifications
was evidence of protected activity.
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), a case arising in the Fifth Circuit, Respondent fired
Complainant as one of its in-house attorneys for failing to
report a telephone call to a state agency and lying about it when
asked by his supervisor; the ALJ found after a hearing that
Respondent fired Complainant both because of his lie about the
phone call and because of Complainant's internal memorandum on
Respondent's violations of the environmental laws.
Respondent raised the argument that Complainant's internal
complaints of violations of the environmental laws are not
protected activities under the Fifth Circuit's decision in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
The Secretary noted that this issue had already been decided in
an earlier decision in the case, Willy v. The Coastal
Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8.
The Secretary also held that Brown & Root is
applicable only to the ERA and did not purport to interpret the
environmental whistleblower laws at issue in this case.
[Editor's note: The 5th Circuit noted the Secretary's
nonacquiescence to Brown & Root with apparent
disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13
(5th Cir. 1988), although the issue was not squarely addressed in
that decision.]
XII D 2 Contact with NRC investigator is, in itself,
protected activity even when
record does not disclose the reason for the
contact
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.
XII D 2 Participation in NRC proceeding; filing of a
DOL whistleblower complaint
It is protected activity for an employee either to testify or
participate in an NRC enforcement proceeding, or to file a
complaint or charge of employer retaliation [with the DOL]
because of safety and quality control activities. 42 U.S.C.
§ 5851(a)(1)-(3); McCuistion v. TVA, 89-ERA-6 (Sec'y
Nov. 13, 1991).
Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993) (Complainant had filed an earlier
complaint with DOL; see 85-ERA-34).
XII. D. 2. Participation in NRC proceeding or
investigation; protected activity
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), a case arising in the Fifth Circuit, Respondent fired
Complainant as one of its in-house attorneys for failing to
report a telephone call to a state agency and lying about it when
asked by his supervisor; the ALJ found after a hearing that
Respondent fired Complainant both because of his lie about the
phone call and because of Complainant's internal memorandum on
Respondent's violations of the environmental laws.
Respondent raised the argument that Complainant's internal
complaints of violations of the environmental laws are not
protected activities under the Fifth Circuit's decision in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
The Secretary noted that this issue had already been decided in
an earlier decision in the case, Willy v. The Coastal
Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8.
The Secretary also held that Brown & Root is
applicable only to the ERA and did not purport to interpret the
environmental whistleblower laws at issue in this case.
[Editor's note: The 5th Circuit noted the Secretary's
nonacquiescence to Brown & Root with apparent
disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13
(5th Cir. 1988), although the issue was not squarely addressed in
that decision.]
XII.D.2. Advising employer of intent to be a witness
In Floyd v. Arizona Public Service Co., 90-ERA-39
(Sec'y Sept. 23, 1994), the Complainant claimed that he told the
Employee Concerns representative that he expected to be a witness
in another employee's ERA case. For purposes of analysis, the
Secretary assumed that his advising about being a witness
constituted protected activity.
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Complainant engaged in protected
activity when she informed her supervisors about concerns that a
computer used for tracking valve testing was unreliable,
questioned the procedure for tracking valve tests, met with her
supervisor's superior regarding what she viewed as an instruction
to improperly discard certain paperwork, and raised concerns with
her superiors concerning the use of non-approved criteria for
certain testing.
The Complainant also engaged in protected activity when she spoke
with an NRC Inspector concerning the procedure for tracking valve
tests, and persisted on problem until an Licensee Event Report
(LER) was filed with the NRC. [citing cases involving protected
activity at early stage in investigation or as preliminary steps
in a proceeding that could expose wrongdoing].
[Nuclear & Environmental Whistleblower Digest XII D 3] PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id., USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
[N/E Digest XII D 3]
PROTECTED ACTIVITY; ENVIRONMENTAL VERSUS OCCUPATIONAL SAFETY
In Tucker v. Morrison &
Knudson, 94-CER-1 (ARB Feb. 28, 1997), the ALJ had concluded that
Complainant's reporting of the violation of internal safety procedures was
protected
environmental whistleblower activity. The ALJ based this determination on the
theory that
"[s]afety regulations to protect personnel charged with effectuating the
purposes of
environmental legislation such as that involved in this incident should be
deemed an integral
component of the law and its implementation process." The Board
disagreed because
"[t]he safety violations which [an operations manager] committed did not
relate to
environmental safety, but rather to occupational safety."
The Board
wrote that: "[t]he distinction between complaints about violations of
environmental
requirements and complaints about violations of occupational safety and health
requirements
is not a frivolous one. Worker protection for whistleblowing activities
related to
occupational safety and health issues is governed by Section 11 of the
Occupational and
Safety and Health Act, 29 U.S.C. §§ 651-678 (1988), and enforced in
United
States Federal District Courts, not within the Department of Labor's
administrative
adjudicatory process." SeeMinard v. Nerco Delamar Co., 92-SWD-1
, slip
op. at 8 (Sec'y Jan. 25, 1995); DeCresci v. Lukens Steel Co.,
87-ERA-113 ,
slip op. at 4 (Sec'y Dec. 16, 1993); Aurich v. Consolidated Edison Co. of
New York,
Inc., 86-CAA-2, Slip op. at 3-4 (Sec'y Apr. 23, 1987).
PROTECTED ACTIVITY; NRC REQUIREMENTS
[N/E Digest XII D 3]
Where Complainant, an employee of a support services contractor, voiced
complaints to
the manager of nuclear power plant in which the contract services were being
provided about
practices that Complainant alleged violated the NRC requirement to keep
radiation exposure as
law as reasonably achievable, Complainant engaged in protected activity. Mosley v. Carolina Power & Light
Co., 94-ERA-23 (ARB Aug. 23, 1996).
XII.D.3. Safety procedure
In Floyd v. Arizona Public Service Co., 90-ERA-39
(Sec'y Sept. 23, 1994), the Complainant revealed to his direct
supervisor and to the Employee Concerns representative that he
had a safety concern with the work order for the
"annunciator system," which was the same subject that
the Complainant and another whistleblower had raised with a
reporter. The Secretary found that this internal safety
complaint constituted protected activities.
XII. D. 3. Protected activity: questioning of safety
procedures
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Complainant engaged in protected
activity when she informed her supervisors about concerns that a
computer used for tracking valve testing was unreliable,
questioned the procedure for tracking valve tests, met with her
supervisor's superior regarding what she viewed as an instruction
to improperly discard certain paperwork, and raised concerns with
her superiors concerning the use of non-approved criteria for
certain testing.
The Complainant also engaged in protected activity when she spoke
with an NRC Inspector concerning the procedure for tracking valve
tests, and persisted on problem until an Licensee Event Report
(LER) was filed with the NRC. [citing cases involving protected
activity at early stage in investigation or as preliminary steps
in a proceeding that could expose wrongdoing].
XII D 3 Internal complaint covered
The complainant's discussion with a welding inspector, wherein he
was encouraged to raise safety concerns about welding outside his
immediate chain of command and wherein he indicated a desire to
discuss such concerns, is protected activity under the ERA. The
Secretary rejected the ALJ's conclusion that internal activity
was not protected under the ERA, noting that she has respectfully
declined to follow the Fifth Circuit's decision in Brown and
Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), and
instead follows the Tenth Circuit's decision in Kansas Gas
& Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985),
cert. denied, 478 U.S. 1011 (1986).
Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y
Nov. 16, 1992).
XII D 3 Reporting of unsafe condition; breech of
security
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), a revelation of a security deficiency
to a human resources clinical psychologist who was interviewing
Complainant because of complaints about Complainant's behavior,
was found by the Secretary to be protected activity. Complainant
had told the psychologist that he had inadvertently brought a gun
into the facility.
See Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28,
1991) (internal and external complaints about breech in computer
security protected under ERA), aff'd, Detroit Edison Co. v.
Secretary of Labor, No. 91-3737 (6th Cir. 1992) (unpublished
decision available at 1992 U.S. App. LEXIS 8280).
XII D 3 Questioning of safety procedure
Where the complainant orally questioned his foreman about the
correct safety procedure for surveying and tagging contaminated
tools, and also asked the foreman's superior about the issue, his
questioning was tantamount to a complaint that the correct safety
procedure was not being observed, and constituted protected
activity under the ERA. See Dysert v. Westinghouse Electric
Corp., 86-ERA-39 (Sec'y Oct. 30, 1991), slip op. at 1-3
(employee's complaints to team leader about procedures used in
testing instruments is protected internal complaint under the
ERA); Wagoner v. Technical Products Inc., 87-TSC-4 (Sec'y
Nov. 20, 1990), slip op. at 9-12 (internal oral complaints of
warehouse foreman protected under analogous whistleblower
provision of the TSCA, 15 U.S.C. § 2622).
Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 10-11.
XII D 3 Questioning of supervisor's instructions on
safety procedures
In Bechtel Construction Co. v. Secretary of Labor,
No. 94-4067 (11th Cir. Apr. 20, 1995)
(available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44),
the court agreed with the
Respondent's position that general inquiries regarding safety do
not constitute protected activity.
Nonetheless, where the Complainant was not merely making general
inquiries regarding safety but was
raising particular, repeated concerns about safety procedures,
his questioning of his supervisor's
instructions on safety procedures was tantamount to a
complaint.
XII D 3 Questioning of safety procedure as protected
activity
In Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994), the
Secretary held that the Complainant engaged in protected activity
when he questioned radiation
protection personnel about what was happening during a radiation
test, and then asked for a copy of
the results.
It is well settled that reporting potential statutory violations
internally to management is protected activity under employee
protection provisions. Where Complainant informed managers about
his doubts concerning the validity of certain studies that could
be used to support licenses or permits issued pursuant to the
WPCA, Complainant was engaged in protected activity. Abu-
Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y
Sept. 24, 1993).
[Nuclear & Environmental Digest XII D 4]
PROTECTED ACTIVITY; COMPLAINTS ABOUT ADMINISTRATION OF
PERSONNEL SECURITY CLEARANCE UNDER THE CAA, SDWA, SWDA, AND CERCLA
In Johnson v. Oak Ridge Operations
Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30,
1999), Complainants alleged that "they were retaliated against because they expressed concerns
to the DOE Inspector General and to congressional and FBI investigators about [Respondent's]
administration of its personnel security clearance operation. Complainants had expressed concerns that,
under the auspices of [the Chief for Personnel Security], various questionable individuals had their
national security clearances granted or renewed in contravention of DOE personnel security regulations.
Complainants asserted that these individuals included convicted felons, drug dealers and abusers, and
persons with psychological problems. Complainants also asserted that they raised concerns regarding
organized criminal activity, including gambling, drugs and prostitution, and government contract
fraud." Slip op. at 3 (citations to administrative record omitted).
Since Complainants' ERA and TSCA complaints were dismissed based on sovereign immunity,
the ARB Complainants characterized Complainants' case as an argument that "the federal
security clearance requirements and procedures for DOE employees and applicants set forth at 10
C.F.R. Part 710 (1998) were improperly implemented and enforced, and that such improper
enforcement could result in environmental damage in violation of the CAA, SDWA, SWDA, or
CERCLA" Slip op. at 11. The ARB observed that Title 10, Part 710 of the CFR, concerns
eligibility for access to classified matter or special nuclear material, and is issued pursuant to the Atomic
Energy Act of 1954. The ARB found that employee safety concerns under the Atomic Energy Act are
specifically covered by the ERA, while nothing in the CAA, SDWA, SWDA, or CERCLA relates to
security clearance operations at places of employment. The ARB thus concluded that, "[s]ince
Complainants' security concerns are unrelated to potential violations of the CAA, SDWA, SWDA, or
CERCLA, their expressed concerns cannot be grounded in reasonably perceived violations of those
statutes." Slip op. at 11.
The ARB was not convinced by Complainants' theory "that people who have something
questionable in their personal background are, for that reason, likely to engage in behavior at work
which will endanger the environment" finding that theory "rank speculation." Slip
op. at 11.
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB agreed for the most part with the ALJ's findings that the Complainant engaged in protected activity, but noted disagreement with the ALJ's finding that the Complainant engaged in protected activity when he complained about a supervisor's behavior in a meeting and when he participated in two NRC task force meetings. The ARB found that the Complainant had not
. . . engaged in any action during these meetings that was motivated by a belief that USEC was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks that would lead us to conclude that he raised nuclear safety definitively and specifically. We cannot conclude that his mere attendance at these meetings, without more, implicated safety definitively and specifically. We also do not agree with the ALJ's conclusion that Pierce's duties as a QC Manager inherently involved protected activity. This conclusion directly conflicts with the decision of the Sixth Circuit in Sasse v. U.S. Dep't of Labor, 409 F.3d 773 (6th Cir. 2005).
USDOL/OALJ Reporter at n.20.
XII D 5 Filing of nonconformance
reports
The filing of nonconformance reports is protected activity under
the ERA. Batts v. Tennessee Valley Authority, 82-
ERA-5 (Sec'y Mar. 6, 1985) (Secretary, however, did not actually
reach the issue in Batts); but see Brown & Root,
Inc. v. Donovan, No. 83-4486 (5th Cir. Dec. 10, 1984).
[Nuclear & Environmental Whistleblower Digest XII D 5] PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS
In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.
[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; INVESTIGATORY DUTIES
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), when asked whether he thought Respondent Ohio Environmental Protection
Agency (OEPA) had engaged in violations of the nuclear and environmental acts, Complainant
said "no" although he believed that the spirit of the acts had been violated. This
answer complicated the question of whether Complainant, an OEPA investigator, had engaged in
protected activity when he conducted an investigation to rule in or out excessive levels of
contaminants as the cause of high rates of leukemia in an area surrounding a school.
The ALJ found that, although there was no evidence of direct environmental violations by
the OEPA, interference with or adverse action taken against an investigator because of the
investigator's promotion of extensive investigative approaches rendered the investigator actions
protected activity covered by the environmental whistleblower acts. Compare Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984) (investigator
discharged for a "bad attitude" covered by ERA whistleblower provision).
[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; SYNERGISM BETWEEN REPORTING OF SAFETY
CONCERNS AND ENVIRONMENTAL CONCERNS
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for
destroying military chemical agents including nerve gas, Respondent argued that Complainant
could not prevail because his asserted protected activities concerned worker safety and
compliance with Army regulations, but not the CAA, SWDA, TSCA or their implementing
regulations. Complainant replied that in view of the hazardous nature of such operations, there is
an "'inevitable overlap between safety concerns and environmental concerns'" such
that nearly all the Safety Manager's activities would be protected under the environmental
statutes. Slip op. at 10, quoting Complainant's Brief. The ARB agreed with the ALJ's finding
that "many of [Complainant's] activities and complaints were protected under the
environmental statutes because they pertained generally to the risk of an emission of toxic
substances from a dangerous instrumentality...." Slip op. at 11.
The ARB noted that Complainant did not rely solely on the general argument that his work
activities inherently involved environmental safety concerns, but also on several specific
activities. The ARB went on in the decision to consider whether the specific activities
constituted protected activity under the various environmental statutes.
One specific activity cited by Complainant was a lab shutdown based on his concerns
about, inter alia, venting of agents directly into the atmosphere. The ARB held that
such concerns clearly touch on the public's environmental safety, noting that several of the
chemicals handled were covered by the TSCA and the RCRA (SWDA). The ARB stated that
"[t]he fact that [Complainant] expressed concern about a violation of an Army regulation
does not negate the environmental concerns he also expressed .... Where a complainant has a
reasonable belief that the respondent is violating the environmental laws, any other motives he or
she may have for engaging in protected activity are irrelevant." Slip op. at 12-13 (citation
omitted).
The second specific activity cited by Complainant was a concern about a leaking hydrogen
cylinder. Respondent contended that such a concern is covered by the OSHA, and therefore not
protected under the environmental statutes. The ARB, however, found that Complainant
believed the leak could lead to an explosion that would destroy the building, posing a risk of
emission of harmful chemicals to the general environment. Thus, the ARB agreed with the ALJ's
conclusion that Complainant's decision to summon the fire department about the hydrogen leak
was protected activity under the environmental statutes.
Complainant also submitted an internal audit report where he noted a deficiency in the
facility's emergency preparedness plan. Since such a plan is required under the RCRA (SWDA),
the ARB found that the audit report's submission was a protected activity.
Finally, Complainant had been ordered to incorporate the findings of an independent
safety assessment report by MITRE Corporation into the Disposal Facility's safety system plan,
and as result Complainant had concluded that certain hazard analyzes were needed (a process that
could take six months to complete). The ARB found that Complainant's reporting of the need for
the hazard analyzes to his superiors was protected activity because "the analyzes would
likely lead to repair or changes in the plant that would diminish the likelihood of a release of
toxic chemicals into the atmosphere." Slip op. at 14 (citation omitted). In addition, the
ARB found that declination to sign a document indicating that all of the deficiencies identified in
a certain part of the MITRE report were "acceptable" was protected activity, because
Complainant "in effect was pressing the need to correct deficiencies so as to diminish the
likelihood of a catastrophic release of toxic chemicals into the atmosphere." Slip op. at 14
(citation omitted).
[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; NO REQUIREMENT THAT THE STATUS QUO IS
IN VIOLATION OF ANY SPECIFIC STANDARD IF EMPLOYEE IS MAKING
RECOMMENDATIONS ON HOW TO BEST SERVE NUCLEAR SAFETY
In Jarvis v. Battelle Pacific NW
Laboratory,1997-ERA-15 (ARB Aug.
27, 1998), Complainant was given responsibility for developing a new Risk Acceptance Criteria
(RAC) for application to a Department of Energy Tank Waste Remediation. The ALJ found that
ERA protection of the RAC work was contingent on proof that Complainant reasonably believed
that the risk assessment methodology then in use by DOE was in violation of the ERA. The
ARB, however, rejected this finding. Rather, the ARB held that "[t]he protection afforded
whistleblowers by the ERA extends to employees who, in the course of their work, must make
recommendations regarding how best to serve the interest of nuclear safety, even when they do
not allege that the status quo is in violation of any specific statutory or regulatory
standard." Id. @ 8.
To the same effect: Miller v. Tennessee
Valley Authority, 1997-ERA-2 @ 5 (ARB Sept. 29, 1998) (Complainant
expressed security concerns about proposed implementation and installation of new security
system at nuclear facility).
[N/E Digest XII D 5]
PROTECTED ACTIVITY; REPORTING VIOLATIONS IN COURSE OF REGULAR
DUTIES
Reporting violations of environmental statutes in the course of one's regular
duties is
protected activity. Thus, in White v. The Osage Tribal Council,
95-SDW-1
(ARB Aug. 8, 1997), there was no serious issue that an environmental inspector
with
responsibility for monitoring and reporting on Respondent's compliance with
certain provisions
of the SDWA was engaged in protected activity when he filed such reports.
XII D 5 Employee who reports safety violations as a
routine part of his or her job
The fact that an employee reports safety violations in the course
of his or her regular duties does not remove that activity from
categorization as protected activity. Jopson v. Omega
Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995)
(fact that NRC investigation during which violation was reported
was merely routine did not alter protected nature of the
activity).
12 d 5
XII D 5 Quality control personnel at nuclear power
facilities are generally engaged in
work that is protected activity
A quality assurance specialist's participation in a surveillance
to identify instruments that were not
being correctly calibrated is protected activity under the ERA.
Employees engaged in quality
control work in nuclear power facilities are precisely the people
the ERA whistleblower provision is
designed to protect. Collins v. Florida Power
Corp., 91-ERA-47 and 49 (Sec'y May
15, 1995).
XII D 5 Quality control functions are by definition
protected activities
Employees performing quality control and quality assurance
functions are engaged in activity protected by section 5851 of
the ERA. Thus it is irrelevant whether they had contact with NRC
or made any "internal protest" regarding safety
problems in determining whether they engaged in protected
activity.
Richter v. Baldwin Associates, 84-ERA-9 to
10 (Sec'y Mar. 12, 1986) (order of remand) (citing Mackowiak
v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984) ("In a real sense, every action by quality control
inspectors occurs 'in an NRC proceeding,' because of their duty
to enforce NRC regulations.")).
XII D 5 All quality control personnel engage in
protected activity
It is not required that every element of a legal cause of action
be set forth in an employee's section 5851 complaint. Moreover,
a mere allegation that Complainant was assigned quality assurance
functions is sufficient to state a cause of action since it has
been recognized that all quality control personnel are engaged in
activity protected by section 5851. [Complainant asserted that
he was retaliated against because he performed his quality
assurance functions of identifying deficiencies in Respondent's
nuclear quality assurance program]. Bassett v. Niagara
Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986).
Where Complainant sent a letter to Senator Simpson alleging that
she was terminated by Respondent -- a rural water association --
for her complaints to management about inaccurate records,
mismanagement and waste, and none of her complaints were related
to nuclear safety or violations of the ERA, nor environmental
safety or violations of any of the other environmental statutes
with the jurisdiction of the Secretary of Labor, the case was
dismissed because there was no allegation of protected activity
under those statutes. Deveraux v. Wyoming Association of
Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993) (assuming
that a complaint to a Senator could be treated as a
complaint).
[Nuclear and Environmental Whistleblower Digest XII D 6]
PROTECTED ACTIVITY; BAD MANAGEMENT IS NOT ACTIONABLE
In Jones v. United States Enrichment Corp., ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004), the ALJ had found that inadequacies in the quality of supervision received by the Complainant were discriminatory. The ARB, however, held that "[b]ad management . . . is not actionable under the ERA whistleblower protection provision. Accord Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 88-SWD-2, slip op. at 40-41 (ARB Feb. 28, 2003). The whistleblower protection provision addresses only discrimination motivated by protected conduct." USDOL/OALJ Reporter at 13. The Board concluded that even if, as the Complainant alleged, his supervisors did not properly train him, shunned him and unfairly evaluated him in a process to decide which of two employees would be riffed, the Complainant failed to prove by a preponderance of the evidence that the managers retaliated because of his protected activity. The Board wrote: "That [the Respondent's] reason for terminating [the Complainant's] employment might be unpersuasive or even 'obviously contrived' does not mean that [the Complainant's] succeeds here. 'It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.' St. Mary's Honor Center, 509 U.S. at 519, 524. See also Gale v. Ocean Imaging and Ocean Resources, Inc., ARB No. 98-143, ALJ No. 1997-ERA-38, slip op. at 13 (ARB July 31, 2002) (We are not a 'super-personnel department that reexamines an entity's business decisions,' citing Morrow v. Wal-Mart Stores, Inc., 152 F. 3d 559, 564 (7th Cir. 1998))."
XII D 6 Complaints about bookkeeping or voucher
inaccuracies
Where the Complainant activities were not concerned with safety
or pollution but with bookkeeping or voucher inaccuracies, the
ALJ found that she had not engaged in protected activity under
the ERA or its implementing regulations. Deveraux v.
Wyoming Association of Rural Water, 93-ERA-18 (ALJ Apr.
16, 1993).
XII D 6 Complainant's objection to hiring of outside
personnel
In Fugate v. Tennessee Valley Authority, 93-ERA-9
(ALJ July 12, 1993), the ALJ concluded that a Complainant's
objection about the hiring of outside personnel who he felt was
not as qualified as internal craftsmen was not sufficiently
related to plant safety to raise a safety complaint within the
protection of the ERA. The ALJ recognized that such a concern
could be viewed as being related to plant safety but "so
could almost every other aspect of a plant's operation."
Thus, the ALJ concluded that it was actually a purely personnel
matter. The ALJ also noted that a Memorandum of Understanding
between OSHA and the NRC, printed at 53 Fed. Reg. 943, 950 (Oct.
31, 1988), listed the concerns these agencies have over worker
protection at NRC licensed facilities -- and that the memorandum
did not encompass Complainant's concern over personnel
qualifications.
In Bailey v. System Energy Resources, Inc., 89-ERA-
31, 32 (Sec'y July 16, 1993), the Complainants, junior decon
technicians, raised complaints about a change in their work
schedule that required them to assist in smearing and frisking
(decontamination procedures) of tools. One evening shortly
thereafter, Complainants were observed lying on the floor, and
later that evening the plant manager revoked their plant access
privileges, having concluded that they had been sleeping. The
next morning, Respondent's site director decided to fire the
Complainants. Later that day, one of the Complainants contacted
the Nuclear Regulatory Commission to inquire about decon
technicians smearing and frisking tools. Complainants did not
learn that they had been fired until after the contact with NRC.
Complainants contended that the alleged sleeping incident was an
excuse get rid of them because they were raising safety concerns.
The Secretary agreed with the ALJ that Complainants failed to
prove they were engaged in protected activity by making internal
complaints about safety matters (i.e., they did not raise, or
were not perceived as raising, internal safety complaints -- they
were complaining about schedule and duties). In addition, the
telephone call to NRC was made after Complainants had been denied
site clearance, and therefore the inference that protected
activity, much less the likely motive, for the adverse action
could not be raised. Finally, even if a prima facie case had
been established, the adverse action was motivated by a
legitimate, nondiscriminatory reason -- sleeping on the job.
[Nuclear & Environmental Whistleblower Digest XII D 7] PROTECTED ACTIVITY; REQUEST FOR DEVIATION LETTER FROM HOURS OF WORK LIMITS UNDER NRC GENERIC LETTER 82-12
In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006),
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HTM
the Complainant alleged that he was fired because he engaged in protected activity when he complained about the Respondent's violations of NRC Generic Letter 82-12, which limits the amount of overtime that staff members performing safety-related functions may work. The Complainant had been called into work that would have put him in violation of the NRC rule. He repeatedly requested, but was not provided, a deviation letter as provided for in the Rule. The Respondent contended that this amounted to mere administrative requests for a form and did not implicate nuclear safety. The ARB disagreed, noting that the clear objective of the NRC rule was "to prevent situations where fatigue could reduce the ability of operating personnel to keep the reactor in a safe condition." The ARB found a causal relation between the Complainant's actions and his discharge because of temporal proximity, evidence that the Respondent had been hostile to the NRC rule, and findings that the Respondent proffered false reasons for firing the Complainant. Because the proffered reasons were not legitimate, the ARB found that the Respondent had not presented clear and convincing evidence that it would have taken adverse action against the Complainant even in the absence of protected activity.
Internal complaints to management in the form of employee
suggestions is protected activity under the Solid Waste Disposal
Act, as amended, 42 U.S.C. § 6971(a). Helmstetter v.
Pacific Gas & Electric Co., 86-SWD-2 (Sec'y Sept. 9,
1992).
[Nuclear & Environmental Whistleblower Digest XII D 8] PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id., USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
In Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB recognized that "[c]omplaining to an employer about being retaliated against for raising safety complaints can be protected activity." Slip op. at 9. In the instant case, however, it was unwilling to entertain an argument from the Complainant that he had engaged in such activity where he had not presented this theory to the ALJ, and where the argument was supported by no "references to the record, legal authority or analysis." Id. at 9.
XII.D.9. Complaint about retaliation
A discussion with a manager in which the Complainant complains
that he had already been retaliated against for being
"open" with management is protected activity.
Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994) (discussion occurred immediately following a plant meeting
on a new "open" management style).
PROTECTED ACTIVITY; COMPLAINT TO MANAGEMENT ALLEGING
RETALIATION FOR PROTECTED SAFETY CONCERNS [N/E Digest XII D 9]
In Diaz-Robainas v. Florida Power & Light
Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary held
that a complaint to management alleging retaliation for his
safety concerns was protected activity. In Diaz-
Robainas the Complainant alleged in a letter complaining
about a negative performance appraisal that the appraisal was in
retaliation for his "commitment to projects that [he]
considered critical for the nuclear safety of [the facility] and
which [certain supervisors] for budgetary or other reasons,
clearly opposed." The Secretary found that the
Complainant's perception of retaliation for raising protected
concerns was reasonable, and that his raising of the fairness of
the rating was not disingenuous.
A worker . . . has a good faith, reasonable belief
that working conditions are unsafe or unhealthful.
Whether the belief is reasonable depends on the
knowledge available to a reasonable man in the
circumstances with the employee's training and
experience . . . Refusal to work loses its protection
after the perceived hazard has been investigated by
responsible management officials . . . and, if found
safe, adequately explained to the employee.
Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984),
slip op. at 6-7. See also Sartain v. Bechtel Constructors
Corp., 87-ERA-37 (Sec'y Feb. 22, 1991), slip op. at 7-17;
Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y
Feb. 9, 1988), slip op. at 9-11; Smith v. Catalytic, Inc.,
86-ERA-13 (Sec'y May 28, 1986), slip op. at 3.
Actual safety is not the relevant issue in regard to this point;
rather the pertinent issues are whether Complainant had a
reasonable, good faith belief that conditions were unsafe, and
whether Respondent provided sufficient information to dispel
these concerns and adequately explained the safety issues raised.
Under the circumstances in the instant case, if Respondent was in
full compliance with the NRC regulations, and that fact as well
as the reasons for the change in procedures were adequately
explained to employees, the refusal to work would lose its
protection under the ERA at that point. That, however, was not
the case.
Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y
Aug. 3, 1993).
[Nuclear & Environmental Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK ANALYSIS NOT APPLICABLE
WHERE CONFLICT BETWEEN SUPERVISORY DIRECTION AND EMPLOYEE
RESPONSE WAS AVOIDED
In Timmons v. Franklin Electric
Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that the ALJ
erroneously applied the "work refusal" standard provided in Pensyl v. Catalytic,
Inc., 1983-ERA-1 (Sec'y Jan. 13, 1984), because Respondent's foreman withdrew his
directions almost immediately after Complainant voiced his objections to a plant to bury oil
barrels, and thus did not place Complainant in a position where he may have refused to comply
with supervisory instruction. The ARB held that "[b]ecause a direct conflict between
supervisory direction and employee response was avoided, the Pensyl work refusal
analysis is not applicable." Timmons, 1997-SDW-2 @ n.5.
[N/E Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK; RESPONDENT IS NOT REQUIRED
TO READ COMPLAINANT'S MIND
In Macktal v. Brown & Root,
Inc.,
86-ERA-23 (ARB Jan. 6, 1998),
Complainant alleged that his request to be relieved of his duties is protected
activity under
Pensyl v. Catalytic, Inc., 83-ERA-2
(Sec'y Jan. 13, 1984). The ARB, however, found
that "[i]t would have required considerable mental gymnastics on the part
of
[Respondent's] managers to recognize that, when [Complainant] said he wanted
to be relieved of
his duties, he really meant he wanted to be reassigned to work that did not
require him to violate
NRC procedures." Slip op. at 5. The ARB stated that it agreed with the
ALJ that "a
reasonable person could only interpret [Complainant's] request as a
resignation and could not be
held responsible for failure to intuit what [Complainant] now claims was on
his mind."
Slip op. at 5-6.
PROTECTED ACTIVITY; WORK REFUSAL; EMPLOYER MUST INVESTIGATE
AND EXPLAIN, BUT IS NOT REQUIRED TO ENGAGE IN DIALOG WITH
WORKERS
[N/E Digest XII D 10]
In Sutherland v. Spray Systems
Environmental,
95-CAA-1 (Sec'y Feb. 26, 1996), the Secretary, citing,
inter alia,Pensyl v. Catalytic, Inc., 83-ERA-
2 (Sec'y Jan. 13, 1984), noted that a work refusal loses
protection under the CAA and the TSCA after the perceived
hazard has been investigated by responsible management
officials, and if found safe, adequately explained to the
employee. "Management has the prerogative to determine
which means it deems to be most effective provided such
means comport with requisite safety and health standards.
There is no requirement for management to engage in a dialog
with the refusing workers as to which procedure would be
most efficacious." Slip op. At 5-6.
In Sutherland, the Complainants engaged in
protected activity under the CAA and the TSCA when they
expressed concern that the containment preparation method
being used during asbestos removal in a school might be
unsafe for school children who would be returning a few
weeks after the completion of the job. The Complainants
were experienced and/or trained in asbestos removal, and
questioned the method being mandated by a new supervisor.
The Secretary found that "it was incumbent on
management to meet with the Complainants and adequately
explain to them that the change in procedure was appropriate
given the specifics of the job, which differed significantly
from [the Complainants'] previous job experience."
Slip op. at 5. The Secretary found that the Respondent's
management did not make an adequate response, and that
although there was proof that the job had been conducted
consistent with Federal and industry standards, proof of an
actual underlying violation the CAA and TSCA is not
determinative of whether the Complainant's concerns were
reasonable and whether there had been an adequate
explanation to the workers.
In Stockdill v.
Catalytic Industrial Maintenance
Company, Inc., 90-ERA-43 (Sec'y Jan. 24, 1996),
in
contrast, the Secretary agreed with the ALJ's conclusion
that the Complainant's initial concerns about wearing a dust
mask lost their protection after the Respondent adequately
responded to the Complainant's concerns. The ALJ found that
the Respondent in fact went to significant lengths to
investigate and explain the safety of the work area, and
gave the Complainant opportunities to change his mind about
the work refusal.
Editor's note: In
Stockdill,
the Secretary quoted extensively from the ALJ's decision.
In seeming contradiction to the ruling in
Sutherland that management is not required to
engage in a dialog with employees who refuse to work after
an adequate explanation was made, the ALJ in
Stockdill, as quoted by the Secretary, wrote
that "Had Complainant inquired further or had he more
expertise or knowledge of contamination prevention or dust
detection, Respondent might have been required to further
explain and display the safety of Complainant's work
area."
PROTECTED ACTIVITY; WORK REFUSAL UNDER THE CAA; GOOD FAITH
REASONABLE BELIEF
[N/E Digest XII D 10]
In Crow v. Noble Roman's, Inc., 95-CAA-8
(Sec'y Feb. 26, 1996), the Secretary held that the same
standards that apply in an ERA work refusal case also apply
in a CAA case, i.e., a worker may refuse work when he
or she has a good faith, reasonable belief that working
conditions are unsafe or unhealthful. In Crow
the Respondent violated the CAA when it discharged a
technician who refused to work on refrigeration equipment
because he did not have a certification to work on such
equipment containing ozone-depleting compounds.
XII D 10 Protected activity; refusal to work
A foreman who had been demoted after making safety complaints on
behalf of the crews, engaged in further protected activity when
he played a role in the crew's subsequent work refusal related to
those safety issues. The Complainant's actions were found to be
protected under section 211(a)(1)(F), 42 U.S.C. §
5851(a)(1)(F). Harrison v. Stone & Webster Engineering
Group, 93-ERA-44 (Sec'y Aug. 22, 1995).
XII D 10 Work refusal; workplace safety
In work refusal cases, it is not necessary that the safety issue
directly involve nuclear hazards. Rather, a non-nuclear safety
concern as the basis for the work refusal is protected under the
ERA where retaliatory discharge of the complainant has a
potentially substantial effect on nuclear safety (e.g., the
eventual safe operation of the nuclear plant). Respondent had
contended that OSHA was the appropriate statute to cover concerns
about workplace safety unrelated to violations of ERA or the
Atomic Energy Act of 1954.
Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y
Aug. 3, 1993).
XII D 10 Work refusal
From Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y
Jan. 13, 1984):
The legislative history of the employee protection provision of
the ERA, 42 U.S.C. § 5851, makes it clear that it was
drafted with the Coal Mine Health and Safety Act, among other
laws, as a model. When section 5851 was added to the Energy
Reorganization Act in 1978, the Senate Committee Report on the
employee protection provision which became law summarized it
saying "This amendment is substantially identical to
provisions in the Clean Air Act and the Federal Water Pollution
Control Act . . . [and] such provisions were patterned after the
[Labor Management Relations Act, 1947] and a similar provision in
[the Coal Mine Health and Safety Act]." S. Rep. No. 95-848,
May 15, 1978, reprinted in 1978 U.S. Code Cong. & Ad.
News
7303. Thus, section 5851 and the employee protection provision
of the Federal Mine Safety and Health Act (a successor statute to
the Coal Mine Health and Safety Act) are in pari materia and it
is entirely appropriate to look to the legislative history and
case law under the mine safety statutes for guidance in
interpreting the ERA. Rutherford Food Co. v. McComb, 331
U.S. 772 (1975).
The same Congress had the year before discussed the intended
scope of the employee protection provision in the Federal Mine
Safety and Health Act. P.L. 95-164, 91 Stat. 1290. Senate
Report No. 95-181 stated: "The Committee intends that the
scope of the protected activities to be broadly interpreted by
the Secretary [of Labor], and intends it to include not only the
filing of complaints seeking inspection . . . or the
participation in mine inspections . . . , but also the refusal to
work in conditions which are believed to be unsafe or unhealthful
and the refusal to comply with orders which are violative of the
Act or [regulations] . . . ." S. Rep. N. 95-181, May 16,
1977 (9th Cong., 2d Sess.), reprinted in 1977 U.S. Code
Cong. & Ad. News 3401, 3435.
The Secretary went on to discuss additional legislative history
and cases construing this provision, and concluded that "[a]
workable, balanced rule, equally applicable to the ERA, can be
distilled from this legislative history and case law." The
following is that rule:
A worker has the right to refuse to work when he has a
good faith, reasonable belief that working conditions are
unsafe or unhealthful. Whether the belief is reasonable
depends on the knowledge available to a reasonable man in
the circumstances with the employee's training and
experience. Refusal to work is protected if "[the
complainant] reasonably believed that he confronted a threat
to his safety or health." [citations omitted] Refusal
to work loses its protection after the perceived hazard has
been investigated by responsible management officials and
government inspectors, if appropriate, and, if found safe,
adequately explained to the employee. [citations
omitted]
Employees have no protection under section 5851 for refusing to
work simply because they believe another method, technique,
procedure or equipment would be better or more effective.
If the case reaches the dual motive analysis, evidence on the
treatment of other workers who may have refused assignment is
relevant.
XII D 10 Work refusal
The Secretary's work refusal decisions under the analogous
employee protection provision of the ERA were applied in
Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug.
1, 1993), in which the complaint was based on the CAA, the TSCA
and CERCLA. Those decisions provide that a worker has the right
to refuse work when he has a good faith, reasonable belief that
working conditions are unsafe or unhealthful. Whether the belief
is reasonable depends on the knowledge available to a reasonable
man in the circumstances with the employee's training and
experience. Pennsyl v. Catalytic, Inc., 83-ERA-2 (Sec'y
Jan. 13, 1984); accord Sartain v. Bechtel Constructors,
87-ERA-37 (Sec'y Feb. 22, 1991). In the instant case, however,
there was no allegation that conditions were unsafe or
unhealthful and the work refusal (to work on the development of
software) was not protected.
Where an employee's work refusal does not meet the Pennsyl
test, an employer legitimately may discharge the employee for
refusing a work assignment. Wilson v. Bechtel Construction,
Inc., 86-ERA-34 (Sec'y Feb. 8, 1988); see also
Sartain, slip op. at 17 (discharge permissible because of
unprotected work refusal and abusive manner).
XII D 10 Refusal to work, generally
From Tritt v. Fluor Constructors, Inc., 88-ERA-29
(ALJ Jan. 12, 1989):
When asserted in proper circumstances, a refusal to work is a
protected activity. The standard announced by the Secretary to
be applied in these cases is:
A worker has a right to refuse to work when he has a
good faith, reasonable belief that working conditions are
unsafe or unhealthful. Whether the belief is reasonable
depends on the knowledge available to a reasonable man in
the circumstances with the employee's training and
experience.
Pennsyl v. Catalytic, Inc., 83-ERA-2 (Jan. 13, 1984). The
Secretary has also concluded that a refusal to work loses its
protection after the perceived hazard has been investigated by
responsible management officials and government inspectors, if
appropriate, and, if found safe, adequately explained to the
employee. Bennett v. Kaiser Aluminum & Chemical
Corp., 2 MSHC 1424 (1981).
In Tritt, the ALJ concluded that since there was no
evidence that the Complainant had visited the work area on the
day in question, he could not have known about the safety
conditions on that day (safety conditions in the reactor building
changed daily), and could not have known whether his concerns had
been addressed in the interim. Since the Complainant was
familiar with safety procedures, but opted to report to his Union
Steward rather than supervisory personnel, the ALJ concluded that
the Complainant's basis for raising the safety question was
something other than a desire to correct a perceived problem.
Based on these, and other circumstances, the ALJ concluded that
the Complainant did not have a good faith, reasonable belief that
working conditions were unsafe or unhealthful at the time he
refused his job assignment.
[Editor's note: Four contemporary cases against Fluor
Constructors were settled (88-ERA-28 and 30, and 89-ERA-28 and
29. For some reason this case was not settled and is still
pending before OAA at least as of 5-3-93]
XII D 10 Refusal to work
Work refusals may be protected under the ERA if the complainant
has a good faith, reasonable belief that working conditions are
unsafe or unhealthful. Whether the belief is reasonable depends
on the knowledge available to a reasonable man in the
circumstances with the employee's training and experience.
Refusal to work loses its protection after the perceived hazard
has been investigated by responsible management officials and
government inspectors, if appropriate, and, if found safe,
adequately explained to the employee. SeePennsyl v.
Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984) [additional
citations omitted]
In Tritt v. Fluor Constructors, Inc., 88-ERA-29
(Sec'y Aug. 25, 1993), Complainant did not visit the work site
the morning of his work refusal, and the ALJ ruled that he could
not have known it his concerns about the lack of an air
monitoring machine and a HP technician at the work site had been
addressed. The Secretary, however, concluded "as a matter
of law" that the ALJ required too much of a
"reasonable" person in Complainant's circumstances.
Specifically, Complainant testified that an incident involving
falling particles that might have been radioactive did not occur
until the end of his workday, and that he did not know to whom to
address his safety concern since he was working under the power
plant's direction (although a contract employee) and did not have
a foreman. Further, the next morning Complainant clearly
communicated to a union steward and to a power plant supervisor
his safety concerns. The safety complaints were not vague.
The Secretary ruled that prior work refusal decisions, when read
together, "require the employer to do an investigation and
provide an adequate explanation to an employee who articulates a
safety based reason for refusing to work." In the instant
case, there was no investigation or attempted explanation.
The Secretary stressed that he agreed with the ALJ's findings of
fact and assessment of witness credibility, but was simply
reaching a different legal conclusion.
XII D 10 Refusal to work as protected activity
The refusal to work in some circumstances is protected activity
under the employee protection provision of the ERA. The general
rule for such cases was stated in Pensyl v. Catalytic,
Inc., 83-ERA-2 (Sec'y Jan. 13, 1983):
A worker has a right to refuse to work when he has
a good faith, reasonable belief that working conditions
are unsafe or unhealthful. Whether the belief is
reasonable depends on the knowledge available to a
reasonable man in the circumstances with the employee's
training and experience . . . . Refusal to work loses
its protection after the perceived hazard has been
investigated by responsible management officials and
government inspectors, if appropriate, and, if found
safe, adequately explained to the employee.
Id., slip op. at 6-7.
In Wilson v. Bechtel Construction, Inc., 86-ERA-34
(Sec'y Feb. 9, 1988), the Complainant asked general safety
related questions which had been answered several times; at that
point, without being more specific about why he felt his safety
would be endangered by entering a containment area without a
respirator, the Respondent could reasonably conclude that the
Complainant's concerns had been adequately responded to and its
obligation under Pensyl had been met. The Complainant
testified that he believed he was supposed to contact his union
stewart if he had any safety concerns; however there was nothing
in the record to show that anyone had told the Complainant that
this was a proper procedure. The Secretary found that under the
circumstances, the Respondent had a legitimate business reason,
refusal of a work assignment, to discharge the Complainant.
XII D 10 Failure to complete quality control
documents
In Durham v. Georgia Power Company and Butler Service
Group, 86-ERA-9 (ALJ October 24, 1986), the ALJ found that
the Complainant was not engaged in protected activity when he
refused to sign a particular section on a quality control form.
The Complainant argued that by not signing the form, he was
refusing to violate applicable quality control procedures, and
therefore, his suspension was a result of protected activity.
Prior to the suspension, the management had explained to the
Complainant that his signature was required to proceed with work
and the signature did not violate or compromise the integrity of
the quality control procedures. The ALJ noted that had
management requested the Complainant to falsify control documents
or violate quality control procedures in any way, his refusal
would constitute protected activity. The ALJ found, however,
that there was no request for a falsification of the document nor
any compromise of quality control procedures; rather, the
Complainant merely did not agree with the management's request or
explanation. The ALJ found that the Complainant, after the
explanation and before his suspension, knew or should have know
that the requested signature would not violate applicable quality
control procedures. His refusal to sign the form after such
explanation was not protected activity, it was merely refusing to
obey a valid order. Accordingly, the Complainant failed to
establish a prima facie case that his suspension was in
retaliation for protected activity.
XII D 10 Work refusal; internal complaint
In Tritt v. Fluor Constructors, Inc., 88-ERA-29
(Sec'y Aug. 25, 1993), the Secretary rejected Respondent's
contention that work refusals are not protected under the ERA
because they are internal complaints. The Secretary noted that
he has declined to follow Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir, 1984), and has consistently
held that internal complaints are protected activities under
employee protection provisions.
XII D 10 Work refusal
See Crosby v. United States Dept. of Labor, No.
93-70834 (9th Cir. Apr. 20, 1995)
(unpublished) (case below 85-TSC-2), in which the court affirmed
the Secretary's determination that the
Complainant was discharged for proper reasons when he refused to
work on a project because he did
not like the protocol. The court cited the Secretary's work
refusal analysis in Pennsyl v. Catalytic,
Inc., 83-ERA-2 (Sec'y Jan. 13, 1984).
XII D 10 Refusal to work
In a Recommended Decision and Order on Remand, the ALJ in
Smithv. Catalytic, Inc., 86-ERA-12 (ALJ Feb. 13,
1987) addressed the issue of whether the Complainant's refusal
to return to work constituted protected activity by applying the
standard enunciated in Pensyl v. Catalytic, Inc., 83-ERA-
2 (Sec'y 1984). The ALJ found that after about three weeks of
work at the nuclear power plant, the Complainant was exposed to
noble gas. Prior to the exposure, the Complainant participated
in a course of instruction involving radiation safety and was
taught that exposure to noble gas is treated as a skin disorder.
On the day that the noble gas was present in the work area, the
senior health technician routinely monitored air samples and
advised the employees, including the Complainant, of a potential
noble gas problem. He suggested that they leave the work area
early so the gas could blow off their skin and clothes,
reemphasizing that the noble gas was a skin problem. The
technician then took a second gas sample.
In accordance with Pensyl, the ALJ found that the
technician's taking gas samples and informing the employees
constituted an investigation by an appropriate management
official and that he made an adequate explanation to the
employees within the meaning of Pensyl. Furthermore,
other health physics personnel advised the Complainant that he
was exposed to noble gas and not radiation contamination, and if
he sat in the breezeway it would blow off his clothes and skin.
The ALJ also found that this constituted an investigation by the
management and an adequate explanation to the employee within the
meaning of Pensyl. Moreover, the ALJ found that every
other employee in that work area continued working their regular
shift for the remainder of the day. Although it was reasonable
for the Complainant to be concerned about airborne contaminants
because of his history of bronchitis, with his training and
experience, he knew that noble gas was a skin exposure that
would dissipate by allowing it to blow off. The ALJ concluded
that the Complainant did not have a good faith, reasonable belief
that the working conditions were unsafe and that responsible
management officials perceived the potential hazard, investigated
it, and adequately explained it to the employees, including the
Complainant. The claim was dismissed and the Secretary adopted
the finding that the Respondent fulfilled its obligation to
investigate and explain why the perceived safety hazard was not a
threat to the Complainant's heath and safety. See Smith v.
Catalytic, Inc., 86-ERA-12 (Sec'y Mar. 18, 1988).
A corporate attorney who wrote a summary memorandum concerning
the results of an environmental audit of a subsidiary in which he
concluded that the subsidiary was involved in various violations
of certain environmental statutes, and who refused to rewrite the
memo to tone it down, was engaged in protected activity under the
ERA. Willy v. The Coastal Corp., 85-CAA-1 (ALJ
Nov. 29, 1988).
When an oil spill continued after the complainant objected to a
waste disposal crew foreman, and the complainant borrowed a
camera and started openly taking photographs, the complainant
taking of pictures "was an aspect of [his] objection and
thus was protected." Adams v. Coastal Production Operators, Inc., 89-
ERA-3, fn.4 (Sec'y Aug. 5, 1992).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
[Nuclear & Environmental Digest XII D 12 a]
PROTECTED ACTIVITY UNDER TSCA; QUESTIONING MANAGEMENT ABOUT
DOCUMENTATION OF CHEMICAL EXPOSURE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), Respondent repeatedly objected to the questioning of
witnesses or the introduction of documentary evidence that was related to Complainant's
concerns about exposure to chemicals at Respondent's facility, on the ground that Complainant's
health concerns related only to OSHA and were irrelevant to an environmental whistleblower
complaints. One member of the ARB held that these objections lacked merit because
Complainant's concerns relating to company records concerning his history of chemical exposure
related directly to the collection of data that is mandated by the TSCA. The lead opinion wrote
"an employee's questioning of management regarding the documentation of his or her
complaints about health problems that the employee believes are related to chemical exposure is
linked directly to the records that are required to be kept under [TSCA] Section 8(c)."
PROTECTED ACTIVITY; SECRET TAPE RECORDINGS [N/E Digest XII D 12 a]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary held that the Complainant
engaged in protected activity under the ERA by making lawful tape
recordings that constituted evidence gathered in support of a
nuclear safety complaint. Such tape recording are analogous to
other evidence gathering activities that are protected under
employee protection provision, such as making notes and taking
photographs that document environmental or safety complaints.
The Secretary rejected the ALJ's conclusion that the scope and
duration of the recording removed it from protection, and the
Respondent's attempt to justify the Complainant's discharge on
the ground that he could not be an effective manager once other
employees learned of his tape recordings.
XII D 12 a Egregious behavior of complainant
In Mosbaugh v. Georgia Power Company, 91-ERA-1
& 11 (ALJ Oct. 30, 1992), the Respondent placed the
complainant on leave and ultimately discharged him after learning
that the complainant had made hundreds of hours of covert tape
recordings at the work site. The ALJ found that "assuming
[the complainant's] tape recording activity was protected at the
outset, its continuation and scope became so egregious and
potentially disruptive to the workplace that it lost any
protected status it may have once possessed." The ALJ noted
the similarity between this case and Dartey v. Zack Company of
Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), in which the
complainant had misappropriated confidential company records.
XII D 12 a Particular activities; efforts to obtain
information
An inspector's efforts to obtain information needed to identify
quality problems is protected; however an employee is not free to
choose the precise manner in which to seek necessary information.
A rule requiring permission from a superior is not on its face
unreasonable. In the instant case, it was not unreasonable for
the Secretary to conclude that the employee was not engaged in
protected activity when he left his work area -- purportedly to
conduct industry code research -- without permission, where the
employer offered a plausible business reason for the rule
requiring permission to be away from a work station: the need to
ensure adequate QCI coverage so that production could continue.
Lockert v. United States Dept. of Labor, 867 F.2d
513, 518 (9th Cir. 1989).
XII D 12 a Advancement of policies of Act
A Complainant's activities aimed at discovering and removing
asbestos hazards from school buildings were protected under the
Toxic Substances Act, 15 U.S.C. § 2622, since these efforts
fostered and advanced the underlying policies of the Act,
constituted "action to carry out the purposes of" the
Act within the meaning of section 2622(a)(3). Hanna v.
School District of the City of Allentown, 79-TSC-1 (Sec'y
July 28, 1980), reversed on other grounds, School District of
the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir.
1981).
XII D 12 a Taking of photographs is a protected
activity
In Richard Adams v. Coastal Production Operations,
Inc., 89-ERA-3, the Complainant worked for Respondent as
a boat operator on an as needed basis. Upon witnessing an oil
spill while on duty, Complainant objected to a foreman. When the
pump causing the spill continued to discharge oil, the
Complainant borrowed a camera and photographed the pumping
operation. The Complainant's supervisor later asked for the
camera and ordered the Complainant to leave the job site. The
Complainant notified the president of the Respondent business as
well as the coast guard. The following day, the president phoned
the Complainant and chastised him for taking the photographs of
the oil spill and using the boat's radio to call the Coast Guard.
The Secretary held that the Complainant's photographing of the
oil spill was protected activity since "Complainant objected
orally and openly took photographs, further demonstrating to
supervisors on the scene his objection to the spill. In the
context of this case, taking the pictures was an aspect of
Complainant's objection and thus was protected." (Sec'y Aug.
5, 1992).
In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had been tasked with evaluating two interim compensatory measures that might be taken if needed if tests showed that radiation contamination could leak into control rooms. In discussing a draft position paper with a supervisor, the Complainant recommended that the Respondent consult with the NRC on the use of "alternative radiation source term" (AST) calculation and explain the Respondent's position that it is permissible for nuclear plants. The recommendation was rejected because the supervisor believed it was unnecessary to consult with the NRC on the matter and because it was company policy not to use the NRC as a consultant. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB stated that the Complainant's burden to survive summary judgment was to produce some evidence that he reasonably believed that consulting with the NRC about using AST was in some way necessary to insure safety at Nine Mile Point or that not consulting would violate the ERA, the AEA, or their implementing regulations. The Complainant, however, adduced no such evidence.
[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; RECOMMENDATION TO DISCUSS WITH THE NRC A FAILURE TO FOLLOW REGULATORY PROCEDURE FOR SUBMISSION OF LICENSE AMENDMENTS FOUND NOT TO BE PROTECTED ACTIVITY
In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had recommended that the Respondent discuss with the NRC an alleged informal communication of calculations used to support a license amendment five years earlier and the NRC's failure to place the communication in the public docket. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB affirmed the ALJ's grant of that motion because nothing in the record informed how this recommendation implicated safety. The ARB also affirmed grants of summary decision on two other concerns the Complainant had raised about internal procedures for preparing a report and for submitting changes to a license amendment request where the record failed to reveal how those concerns related to nuclear safety.
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; SOCIO-ECONOMIC CONCERNS NOT RELATING TO ENVIRONMENTAL HEALTH AND SAFETY ARE NOT COVERED UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS
In Santamaria v. U.S. Environmental Protection Agency, ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the Complainant did not engage in protected activity under the environmental whistleblower laws where the concerns he raised related only to EPA's alleged failure to assure that that Minority Business Enterprise and Women-Owned Business Enterprises legal requirements were being complied with by EPA contractors. The ARB found that these concerns raised related to socio-economic matters rather than environmental health and safety issues.
XII D 13 Refusal to sign release
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(Sec'y Mar. 30, 1994), the Secretary held that Respondent
violated the ERA when it declined to hire a complainant who
refused to sign a release in a form authorizing Respondent to
conduct a background check on Complainant. Complainant had
previously engaged in whistleblowing. The release, in the
Secretary's view, had the purpose of releasing Respondent from a
claim that information had been provided or used to deny
Complainant employment because of protected activities under the
ERA -- Complainant would have waived his right to file a
complaint of illegal blacklisting.
In Doyle, the Secretary reviewed analogous cases
under the Fair Labor Standards Act and Title VII of the Civil
Rights Act of 1964. In addition, the Secretary concluded that
the release could not have been raised as a defense in an ERA
employee protection case because recognition of such a release
"could nullify the Act and Congressional intent to protect
public health and safety by prohibiting retaliation against those
who report potential safety hazards in the construction and
operation of nuclear power plants." Slip op. at 6.
The Secretary ordered Respondent to extend an offer of employment
to Complainant as a senior technician or similar comparable
position, and pay Complainant back pay, with interest, less
interim earnings from November 21, 1988 to the date of hire or
the date of the offer of employment is Complainant declines the
offer.
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; FILING A WHISTLEBLOWER COMPLAINT
Filing a whistleblower complaint is quintessential protected activity. Talking about such a complaint with the news media and a federal agency is also protected activity. Erickson v. U.S. Environmental Protection Agency, ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006).
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT DESTRUCTION OF E-MAIL RECORDS
In Erickson v. U.S. Environmental Protection Agency, ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant wrote a letter to a Congressman alleging that EPA was destroying e-mail records so that it would not have to provide them to FOIA requesters. The ALJ found that the Complainant did not make a showing of what information was on the backup e-mail tapes or how the destruction of such information specifically violated the environmental laws. Nonetheless, the ALJ concluded that the nature of such records, by virtue of their being EPA e-mail records, preponderated in favor of a finding that some of the records would relate to concerns about environmental containments, and therefore the letter to the Congressman was protected activity. The ARB rejected this logic, finding that it "greatly extends controlling precedent that the employee's concerns must be reasonably related to a violation of the environmental acts or a specific environmental threat." USDOL/OALJ Reporter at 17. The ARB found that the letter was not protected activity.
[Nuclear and Environmental Whistleblower Digest XII D 13] WHISTLEBLOWER STATUS DOES NOT ENTITLE A COMPLAINANT TO DISPENSATION IN REGARD TO PERFORMANCE STANDARDS
The fact that a complainant was a whistleblower does not entitle him to dispensation in regard to performance standards. Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007).
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[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; GOVERNMENT EMPLOYEE PERFORMING JOB DUTIES RELATED TO THE ENVIRONMENT
In Sasse v. USDOL, No. 04-3245 (6th Cir. May 31, 2005) (case below ARB No. 02-077, ALJ No. 1998-CAA-7), the Sixth Circuit held that an Assistant U.S. Attorney could not state a claim under the whistleblower provisions of the CAA, SWDA, and FWPCA premised on his investigation and prosecution of environmental crimes because he was merely performing his assigned job duties. The court cited the reasoning of Willis v. Dept. of Agriculture, 141 F.3d 1139, 1145 (Fed. Cir. 1998), a case arising under the Whistleblower Protection Act, as equally applicable to the whistleblower provisions at issue in Sasse. Essentially, the whistleblower provisions protect those who risk their job security by taking steps to protect the public good; an employee who is merely performing duties required of him in a job cannot be said to have risked his personal job security, and has not engaged in protected activities.
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; STATE LAW AUTHORIZED BY THE FEDERAL SWDA
In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ARB rejected the Respondent's assertion that the federal environmental whistleblower acts do not apply to conditions regulated by states, where the state's Solid and Hazardous Waste Act was a state SWDA plan that the federal SWDA authorized.
[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; THE SWDA COVERS BOTH ENVIRONMENTAL AND OCCUPATIONAL SAFETY
In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the Complainant had filed a written complaint about skin contact with objects contaminated with SWDA-related hazardous chemicals. The ARB rejected the Respondent's contention that this was not protected activity because the SWDA does not cover skin contact. The Board wrote that "Hazards relating to skin contact are occupational safety hazards. SWDA deals with environmental and occupational safety. 42 U.S.C.A. § 6971(f)." Slip op. at n.4.
[Nuclear & Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; ALTHOUGH PROSECUTOR'S WORK PROSECUTING ENVIRONMENTAL CRIMES IS NOT PROTECTED ACTIVITY PER SE, BOARD LEAVES OPEN POSSIBILITY THAT SUCH ACTIVITY COULD BE CONSIDERED SUCH
In Sasse v. Office of the U.S. Attorney, USDOJ, ARB No. 02 077, ALJ No. 1998 CAA 7 (ARB Jan. 30, 2004), the ALJ erred in relying on decisional law under the whistleblower protection provision of the Civil Service Reform Act, 5 U.S.C.A. § 2302(b)(8)(A) (West 1996) in determining whether an Assistant U.S. Attorney's (AUSA) work as a prosecutor was protected activity. The ARB concluded that the environmental whistleblower protection provisions are significantly broader in scope than the CSRA provision. The ARB disagreed with the Complainant's proposition that work prosecuting environmental crimes is protected activity per se, and that his management's disagreements on case prosecution should be deemed actionable interference. As addressed in another section of the decision, the ARB determined that it would not review the prosecutorial decisions of a AUSA's supervisors, and therefore the Complainant's claims could not be predicated on his employment status alone (although this was not wholesale immunity from charges that DOJ took discriminatory acts because the AUSA was engaged in statutorily protected activities). The Board declined to draw a fixed line between protected and unprotected acts in the case because the whistleblower's complaint failed for a variety of other reasons. Thus, the Board assumed, without deciding, that Complainant's work on environmental crimes was protected activity.
[Nuclear & Environmental Whistleblower Digest XII D 13] PROTECTED ACTIVITY; REPORT OF PURPORTED EX PARTE COMMUNICATION
In Greene v. Environmental Protection Agency, 2002 SWD 1 (ALJ Feb. 10, 2003), the Complainant was an ALJ with the EPA. In her complaint, she alleged that she engaged in protected activity when she reported to the parties in a SWDA matter pending before her that the Chief ALJ of EPA had engaged in a conversation about the case with the supervisory attorney in EPA's Region III office in which the Chief ALJ exhorted the regional office to either aggressively pursue settlement or progress to hearing because the case was unduly overage.
The ALJ who presided over the instant complaint for DOL found that Complainant did not engage in protected activity under the SWDA because the EPA Chief ALJ's communication was not an ex parte communication as the EPA Chief ALJ was not the presiding judge and had no decisional authority in the case, and the supervisory attorney was not representing EPA in the case, and because no substantive or important procedural matters were discussed. Moreover, the Complainant was informed about the Chief ALJ's intention to have the discussion, the Chief ALJ provided a memorandum to Complainant recording the substance of the discussion, and the record did not show that anyone thought the discussion was improper at the time. The ALJ found that Complainant, as an experienced ALJ, undoubtedly knew that such a conversation was not an improper ex parte communication. Finally, the ALJ found that the complaint did not demonstrate that the conversation had the potential to affect, or did affect the purposes of the SWDA. Accordingly, summary judgment on this issue was granted to Respondent.
[Nuclear & Environmental Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT FAIRNESS OF PERFORMANCE EVALUATION
In Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), the ARB adopted the ALJ's holding that Complainant's complaint to his employer about the fairness of his performance evaluation was not protected activity within the meaning of the ERA whistleblower provision because it did not relate to the health and safety purposes of the ERA.
[Nuclear & Environmental Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT INSUFFICIENT FUNDING
In Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July
13, 2000), the ALJ recommended a ruling that Complainant did not engage in protected activity
by complaining to his supervisors that insufficient and ineffective resources had been provided to
assist him in developing an NRC examination for individuals to be entrusted with running a
nuclear power plant. The ALJ found the question to be a "very close call,"
considering the mandate to construe liberally the definition of protected activity, but found that
under circumstances Complainant's belief of a violation of the underlying nuclear protection law
was not factually reasonable.
[N/E Digest XII D 13]
PROTECTED ACTIVITY; PROVIDING DOCUMENTATION FOR ANOTHER'S
COMPLAINT
In Paynes v. Gulf States Utilities Co., 93-ERA-7 (ALJ Dec. 3,
1997), the ALJ
recommended a holding that Complainant's documentation of a safety concern
that was raised by
another employee is sufficient to constitute protected activity under the ERA.
[N/E Digest XII D 13]
PROTECTED ACTIVITY; FILING OF PRICE-ANDERSON ACT CIVIL ACTION
A Price-Anderson Act civil action is a "proceeding" under the
"Atomic Energy
Act, as amended" within the meaning of Section 211 of the ERA, and
therefore falls within
its protective ambit. McCafferty v.
Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997).
[N/E Digest XII D 13]
PROTECTED ACTIVITY; GOSSIPING
In Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1
(ARB
Sept. 17, 1997), the ALJ had concluded that Complainant's actions in relating,
in an unofficial
conversation with an NRC inspector, rumors about a personal relationship
between a
management official and a state or federal nuclear inspector, and the alleged
stagging of an
equipment failure by the management official, were undeniably in poor judgment
and were
unrelated to any protected activity on the part of Complainant.
The ARB noted that "[i]n view of the overriding importance of encouraging
communications by employees with the NRC regarding safety-related matters, we
are reluctant
to agree with the ALJ that [Complainant's] remarks to [the NRC inspector] were
unprotected or
that [Employer's] dissatisfaction with [Complainant's] exercise of judgment in
that instance is
wholly unrelated to activity that is protected by the ERA." The ARB,
however, did not
render a holding on this issue because there was clear and convincing evidence
that Complainant
would have been terminated from employment even in the absence of his
protected activity (and
even assuming that the relating of rumors in the present context was protected
activity).
[N/E Digest XII D 13]
PROTECTED ACTIVITY; PERSONNEL DISPUTE
In Holtzclaw v. Commonwealth of Kentucky
Natural Resources and
Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997),
Complainant
became involved in an internal EPA personnel matter during a period on which
he was
"on-loan" to the Commonwealth of Kentucky as a coordinator on
environmental
studies relating
to several geographic areas of the state. Complainant attempted to obtain the
assistance of a
certain EPA expert involved in the personnel matter.
The Board, although not reaching the issue, expressed doubt that this was
protected
activity on the part of Complainant. The Board stated that "[a]bsent a
showing that [the
expert] possessed some truly unique abilities or insights without which the
geographic initiatives
would have been significantly impaired, fighting a personnel battle over the
assignment of a
specific employee to a particular project is probably too remote from
protection of the
environment to be protected under the Acts." Slip op. at 5 n3 (citation
omitted).
FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED
ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS;
EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA
CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]
In Tyndall v. U.S. Environmental Protection
Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the
Complainant was assigned to investigate an EPA employee regarding
alleged improprieties in the awarding and administration of a
computer modeling contract to study the effects of acid rain.
The Complainant alleged in his CAA complaint that his supervisors
gave him directions that constituted interference in the
investigation, and that the EPA Inspector General had disregarded
the Complainant's recusal from the investigation and forced him
to lead the investigation. The ALJ concluded that the CAA
whistleblower complaint did not state allegations related to the
environmental safety or violations of the CAA, and recommended
dismissal of the complaint. The Board observed that this was
analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief may be granted.
The Board, citing Jenkins v. U.S. Environmental Protection
Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's
employee protection provision is construed broadly, and that the
Complainant's allegations of protected activity met that broad
construction and may constitute protected activity. For
instance, the Complainant could establish that the alleged
interference with the investigation would lead the EPA to rely on
acid rain studies that understate the harmful effects of acid
rain, leading to less than appropriate regulation. The Board
also found that the Complainant stated the other elements of a
prima facie case, and therefore remanded for a hearing.
The Board noted that the Complainant also complained that
interference by his EPA managers may have violated the civil
service laws or the Inspector General Act. The Board stated that
"[t]he allegation of a violation of other statutes does not
defeat the claim under the employee protection provision [of the
CAA]." Slip op. at 9.
FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED
ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS;
EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA
CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]
In Tyndall v. U.S. Environmental Protection
Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the
Complainant was assigned to investigate an EPA employee regarding
alleged improprieties in the awarding and administration of a
computer modeling contract to study the effects of acid rain.
The Complainant alleged in his CAA complaint that his supervisors
gave him directions that constituted interference in the
investigation, and that the EPA Inspector General had disregarded
the Complainant's recusal from the investigation and forced him
to lead the investigation. The ALJ concluded that the CAA
whistleblower complaint did not state allegations related to the
environmental safety or violations of the CAA, and recommended
dismissal of the complaint. The Board observed that this was
analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief may be granted.
The Board, citing Jenkins v. U.S. Environmental Protection
Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's
employee protection provision is construed broadly, and that the
Complainant's allegations of protected activity met that broad
construction and may constitute protected activity. For
instance, the Complainant could establish that the alleged
interference with the investigation would lead the EPA to rely on
acid rain studies that understate the harmful effects of acid
rain, leading to less than appropriate regulation. The Board
also found that the Complainant stated the other elements of a
prima facie case, and therefore remanded for a hearing.
The Board noted that the Complainant also complained that
interference by his EPA managers may have violated the civil
service laws or the Inspector General Act. The Board stated that
"[t]he allegation of a violation of other statutes does not
defeat the claim under the employee protection provision [of the
CAA]." Slip op. at 9.
XII D 13 Refusal to testify in another ERA proceeding
according to outline prepared by the
respondent
Where the Complainant attended a pre-hearing session as a
prospective witness for the Respondent in another whistleblower
case, and in effect refused to testify to facts as stated in a
proposed outline of testimony which he believed to be false, the
Complainant engaged in protected activity under the ERA. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug.
4, 1995).
XII D 13 PROTECTED ACTIVITY; PERSONNEL ISSUE
In order to prevail in an environmental whistleblower
case, the complainant must first show that he or she engaged
in protected activity. In Fugate v. Tennessee
Valley Authority, 93-ERA-9 (Sec'y Sept. 6,
1995), the complaint was dismissed because the Complainant
neither pled nor presented any evidence from which one could
conclude that he engaged in protected activity within the
meaning of the environmental whistleblower provisions. The
Complainant made an internal complaint regarding a personnel
issue (the hiring of "outside" fire fighters), not
a safety concern.
XII D 13 Protected activity; lack of freon recovery
system when refrigeration
equipment is repaired
A complainant sufficiently alleges protected activity for
purposes of a motion to dismiss based on
failure to state a claim upon which relief may be granted by
asserting that he or she had made
complaints to the EPA concerning the lack of a freon recovery
system for use when refrigeration
equipment is repaired. Jackson v. The Comfort Inn,
Downtown, 93-CAA-7, slip op. at 3-4
(Sec'y Mar. 16, 1995). Studer v. Flowers Baking Company of
Tennessee, Inc., 93-
CAA-11 (Sec'y June 19, 1995).
XII D 13 Bypassing the company's chain of command to
speak directly to
EPA
An employee who bypasses the company's chain of command to speak
directly with the EPA about
possible violations of environmental laws may be protected under
the CAA. The employer has an
opportunity, however, to establish that it legitimately would
have fired the complainant for refusing to
notify it of a safety problem. Studer v. Flowers Baking
Company of Tennessee,
Inc., 93-CAA-11 (Sec'y June 19, 1995) (Complainant
alleged that he was discharged for
insubordination because he did not bring allegations of
noncompliance immediately to management's
attention and for refusing to provide a notebook containing
observations of alleged violations of
environmental laws).
XII D 13 Picketing or protest activity may be protected
activity
In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May
18, 1995), the Secretary
assumed for the purposes of the decision that picketing or
"protest" activity, which is
designed to inform the Respondent and the public of the
complainant's belief that the Respondent was
committing safety violations, is protected activity. Citing
Payne v. McLemore's Wholesale &
Retail Stores, 654 F.2d 1130, 1137 (5th Cir. 1981).
XII. D. 13. Legal fiction; activity that Complainant
denies having done may constitute protected
activity if Respondent's belief was that it
was protected activity
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), Respondent fired Complainant as one of its in-house
attorneys for failing to report a telephone call to a state
agency and lying about it when asked by his supervisor; the ALJ
found after a hearing that Respondent fired Complainant both
because of his lie about the phone call and because of
Complainant's internal memorandum on Respondent's violations of
the environmental laws.
On review, the Secretary considered whether the telephone call
itself was protected activity since it was made to a state
department of water resources regarding a refinery and the
potential for that agency to sue Respondent.
The ALJ held that the call was not protected because Complainant
denied making it and there was not enough information in the
record about "the substance of such contact to support a
finding that it constituted protected activity." The
Secretary stated, however, that the focus should be on
Respondent's perception of Complainant's activity and whether
Respondent was motivated by its belief that Complainant had
contacted a state agency.
The Secretary held that although it was clear that Respondent
believed Complainant did make the call to the state agency, it is
difficult to separate out his motivation with respect to the
call: if Respondent's asserted reason for being upset was true -
- failure to keep colleagues informed about a potential lawsuit -
- the telephone call would not be protected activity: If,
however, Respondent was upset simply because Complainant
contacted a state agency concerning one of Respondent's
facilities, the call would be protected activity.
The Secretary concluded, however, that based on the record
presented, it could not be determined whether the protected
aspects of Complainant's phone call motivated Respondent.
Therefore, coverage was based solely on the internal report.
[Editor's note: This case arose in the Fifth Circuit in which
internal complaints are not recognized as protected activity.
The Secretary had invited the Fifth Circuit to reconsider this
position in an earlier decision in the same case. This
alternative ruling, therefore, is important because if the Fifth
Circuit maintains its position on internal complaints,
Complainant will have no protected activity to base his complaint
upon.
Although the ERA was amended in 1992 to include internal
complaints as protected activity, this is not an ERA case, so it
is unclear what the Fifth Circuit will do with this issue if an
appeal is taken.]
XII D 13 Going to NRC first
An employer violates the employee protection provision of the ERA
when it takes adverse action against an employee for violating a
stated policy of urging employees to bring complaints to
management before going outside the NRC. Rainey v. Wayne
State University, 89-ERA-48 (Sec'y Apr. 21, 1994) (in the
case sub judice, however, there was no allegation that
Complainant was removed for failure to follow this policy).
XII D 13 Internal complaints; miscellaneous
Protected activity includes such internal complaints as
a complaint about a failure to provide the Complainant with
an operations manual
a refusal to sign statements verifying attendance at
non-existent meetings
an objection to working with a co-worker who had committed
three known safety violations
a complaint about improper use of radioactive isotopes to
x-ray a mouse
a threat to tell NRC investigators about the incidents.
XII D 13 Reporting of mishandling of materials by
student
A complaint or charge concerning quality or safety communicated
to management or the NRC is
protected under the ERA. McDonald v. University of
Missouri, 90-ERA-59 (Sec'y Mar.
21, 1995) (complainant to university management about the
mishandling of radioactive materials by a
graduate student).
XII D 13 Complaining to other workers; federal
prison setting
In Delaney v. Massachusetts Correctional
Industries, 90-TSC-2 (Sec'y Mar. 17, 1995),
the Secretary held that a prisoner who discussed complaints about
exposure to toxic chemicals within
earshot of other prisoners was not engaged in protected activity,
stating that the cases are clear that an
employer may take action against an employee for improper conduct
in raising otherwise protected
complaints. The Secretary limited his holding to a prison
setting, stating that "[i]n ordinary
employment surroundings, the fact that a co-worker overheard a
whistleblower making or discussing his
safety complaint would not, without more, deprive him of
protection under TSCA."
XII D 13 Protected activity; Exceeding the channels of
communication distinguished
from bypassing the channels of communication
In Leveille v. New York Air National Guard,
94-TSC-3 and 4 (ALJ Jan. 19, 1995), the
ALJ distinguished decisions indicating that employees engage in
protected activity when bypass the
chain of command or go around established channels when bringing
forth environmental concerns. In
the other decisions, the employee either expressed no
environmental concerns to the employer, or
bypassed a supervisor or the respondent altogether. In the
instant case, the Complainant reported the
problem to the Respondent, but went beyond those channels when
she disagreed with the
Respondent's method of dealing with the problem.
XII. D. 13. Legal fiction; activity that Complainant
denies having done may constitute protected
activity if Respondent's belief was that it
was protected activity
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), Respondent fired Complainant as one of its in-house
attorneys for failing to report a telephone call to a state
agency and lying about it when asked by his supervisor; the ALJ
found after a hearing that Respondent fired Complainant both
because of his lie about the phone call and because of
Complainant's internal memorandum on Respondent's violations of
the environmental laws.
On review, the Secretary considered whether the telephone call
itself was protected activity since it was made to a state
department of water resources regarding a refinery and the
potential for that agency to sue Respondent.
The ALJ held that the call was not protected because Complainant
denied making it and there was not enough information in the
record about "the substance of such contact to support a
finding that it constituted protected activity." The
Secretary stated, however, that the focus should be on
Respondent's perception of Complainant's activity and whether
Respondent was motivated by its belief that Complainant had
contacted a state agency.
The Secretary held that although it was clear that Respondent
believed Complainant did make the call to the state agency, it is
difficult to separate out his motivation with respect to the
call: if Respondent's asserted reason for being upset was true -
- failure to keep colleagues informed about a potential lawsuit -
- the telephone call would not be protected activity: If,
however, Respondent was upset simply because Complainant
contacted a state agency concerning one of Respondent's
facilities, the call would be protected activity.
The Secretary concluded, however, that based on the record
presented, it could not be determined whether the protected
aspects of Complainant's phone call motivated Respondent.
Therefore, coverage was based solely on the internal report.
[Editor's note: This case arose in the Fifth Circuit in which
internal complaints are not recognized as protected activity.
The Secretary had invited the Fifth Circuit to reconsider this
position in an earlier decision in the same case. This
alternative ruling, therefore, is important because if the Fifth
Circuit maintains its position on internal complaints,
Complainant will have no protected activity to base his complaint
upon.
Although the ERA was amended in 1992 to include internal
complaints as protected activity, this is not an ERA case, so it
is unclear what the Fifth Circuit will do with this issue if an
appeal is taken.]