[Nuclear & Environmental Digest X A]
AUTHORITY OF AGENCY TO DETERMINE CONSTITUTIONALITY OF STATUTE
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), Respondent asserted that because Complainant was seeking compensatory and
exemplary damages, and seeking to vindicate private rights rather than public rights, Respondent
has a Constitutional right under the Seventh Amendment to a jury trial, citing
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) and Feltner v. Columbia
Pictures Television, Inc., 118 S.Ct. 1279 (1998). The Board declined to rule on the
constitutionality of the subject acts, citing Thunder Basin Coal Co. v. Reich, 510 U.S.
200, 215 (1994); Califano v. Sanders, 430 U.S. 99, 109 (1977); United States v.
Bozarov, 974 F.2d 1037, 1040 (9th Cir. 1992).
[Editor's note: Respondent has apparently taken an appeal of this case to the 10th Circuit.]
The Secretary of Labor adopted the ALJ's Recommended Decision and
Order determining that Con Edison violated Section 5851 of the
ERA when it discharged its employee and ordered reinstatement.
Con Edison petitioned the Court of Appeals to set aside the
reinstatement, claiming that the discharge was justified because
the employee threatened to kill his supervisor. At the time this
dual motive discharge case was decided, no precedent existed in
Section 5851 case law. The Court cited Section 5851 legislative
history as authority allowing the application of precedent under
analogous situations in cases of first impression.
In English v. Whitfield, 858 F2d 957 (4th Cir.
1988), the court applied ADEA authority in regard to equitable
estoppel from asserting a statute of limitation in an EPS claim.
The ARB observed in Martin v. The Dept. of
the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), that
because Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., utilizes
virtually the same language in describing prohibited discriminatory acts and shares a common statutory
origin, the Board and the Secretary have looked to law developed under Title VII for guidance
regarding the meaning of the phrase "otherwise discriminate . . . with respect to . . .
compensation, terms, conditions, or privileges of employment."
National Labor Relations Act case law is particularly relevant to
interpretations of the environmental
whistleblower provisions administered by the DOL, as the
provisions were explicitly modeled on the
NLRA. See S. Rep. No. 414, 92d Cong., 2d Sess. 80-81
(1972), reprinted in 1972 U.S.C.
C.A.N. 3668, 3748-49. Ewald v. Commonwealth of Virginia, 89-SDW-1
(Sec'y Apr. 20,
1995).
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 fact that the ERA does not expressly provide for interest on
back pay does not preclude it. Items not expressly provided for
by the Act are not necessarily precluded.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
In Adams v. United States Dep't of Energy, 87-ERA-
12 (ALJ Mar. 19, 1987), aff'd sub. nom, Wensil v. B.F. Shaw
Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29,
1990), aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th
Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), the
administrative law judge found that the Department of Labor does
not have jurisdiction to decide a whistleblower complaint brought
under ERA section 210, 42 U.S.C. § 5821, where the employers
where contractors or subcontractors of the Department of Energy
and were not required to apply for or receive a license from the
Nuclear Regulatory Commission. The Secretary adopted much of
Judge Guill's analysis in Wensil v. B.F. Shaw Co., 86-ERA-
15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op.
at 11 n. 5, aff'd sub nom. Adams v. Dole, 927 F.2d 771
(4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991),
but stated that she did not "feel constrained to defer to
the views of DOE or the NRC in this area because section 210
designates the Secretary of Labor as the official responsible for
the administration and enforcement of this section of the
ERA."
It is appropriate to construe the Clean Air Act in view of case
law under other employee protection provisions that were models
for the Clean Air Act provision, and in view of the purposes that
these provisions are designed to achieve. It is also appropriate
to look to cases construing section 210(a) of the ERA, which was
modeled on and worded almost identically to the CAA provision.
The Senate Report accompanying the ERA employee protection
provision that was ultimately enacted notes that the ERA
provision "is substantially identical to the provisions in
the Clean Air Act and the Federal Water Pollution Control
Act." S. Rep. 95-848, 95th Cong., 2d Sess. 29, reprinted
in 1978 U.S. Code Cong. & Ad. News 7303. It follows,
therefore, that, in interpreting the nearly identical language in
the Clean Air Act, relevant case law developed under the ERA has
great precedential value. Poulos v. Ambassador Fuel Oil
Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of
remand).
X A 5 ERA burden of proof applicable to other Part 24
cases
The ERA burdens of proof are applicable to claims arising under
the TSCA whistleblower provision. Wagoner v. Technical
Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990) (noting
that in practice, those burdens of proof had been applied in
cases arising under all of the statutes implemented in 29 C.F.R.
Part 24, including SWD, CERCLA, CAA, STAA).
[Editor's note: Neither CERCLA nor STAA were implemented by Part
24 at the time of this decision].
The employee protection provisions of the environmental statutes
have traditionally been construed broadly. Jenkins v. U.S.
Environmental Protection Agency, 92-CAA-6 (Sec'y May 18,
1994).
[N/E Digest X A 6]
AFFIRMATIVE DEFENSES; NARROW CONSTRUCTION
The ARB in Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998), in discussing the interpretation
of
section 211(g) of the ERA, concluded that "[s]ince the ERA's remedial protection is to
be
interpreted broadly, any affirmative defenses logically should be interpreted narrowly so as to
provide the act's protections to employees who work within the bounds of safety."
Id.@ 10.
X A 6 Construction to achieve purposes of Act
Employee protection provisions such as the Clean Air Act's are to
be construed broadly and reasonably to achieve their purposes.
These purposes are to protect employees who speak up regarding
violations of the law. In so doing, employees further the
primary purpose of the Clean Air Act which is "to protect
and enhance the quality of the nation's air resources so as to
promote the public health and welfare and the productive capacity
of its population." See also H.R. Rep. 95-294, 95th
Cong., 2d Sess. 2, reprinted in 1977 U.S. Code Cong. &
Ad.
News 1080 ("primary and overriding purpose of the bill
remains the prevention of illness or death which is air pollution
related and protection of the public health").
Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1
(Sec'y Apr. 27, 1987) (order of remand).
In Nolder v. Raymond Kaiser Engineers, Inc., 84-
ERA-5 (Sec'y June 28, 1985), the Secretary determined that Fed.
R. Civ. P. is to be applied where voluntary dismissals are
sought, but left open the question of whether section
24.5(e)(4)(ii) was applicable. In Nunn v. Duke Power
Co., 84-ERA-7 (Sec'y Sept. 29, 1989), the Secretary
concluded that because section 24.5(e) is labeled "Dismissal
for Cause," that regulation was not applicable to voluntary
dismissals.
It is important to note that the flow and presentation of
evidence in a hearing often will not be as finely tuned and
carefully orchestrated as the discussion of these rules may
suggest. These rules are to be applied by the ALJ to the extent
practicable during the hearing and, of course, to the record as a
whole at the close of the hearing.
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr.
25, 1983).
X B Relationship of evidence to legal analysis
Evidence in a particular case may not always be so "finely
tuned and carefully orchestrated" as to fit neatly within
the analytical rules set forth in Dartey.
Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y
Jan. 6, 1992), citing Dartey v. Zack Co., 80-ERA-2 (Sec'y
Apr. 25, 1983), slip op. at 9.
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
[Nuclear & Environmental Digest X C]
EVIDENCE; PROBATIVE VALUE OF ALLEGED BROAD ENVIRONMENTAL CONTAMINATION BY RESPONDENT
In Cox v. Lockheed Martin Energy Systems, Inc., ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001), Complainants argued that the ALJ erred in refusing to admit into evidence certain documents. The ALJ found that the offered documents were offered late and without good cause; the ARB affirmed on that ground, but went on to observe that the documents had little relevance to the case. The ARB concluded that the documents were offered to attempt to demonstrate a broad conspiracy on the part of Respondent to cover up environmental contamination, but had nothing to do with the circumstances of Complainants' termination from employment. The ARB wrote:
While environmental contamination in general is a matter of significant public concern, the Coxes have chosen an inappropriate vehicle for raising any such broader issues. The Labor Department's jurisdiction under the ERA and the Environmental Acts is to enforce the employee protection provisions of these statutes; the documents cited by the Coxes simply have little bearing on the underlying question in this case, i.e., whether they were chosen for layoff in retaliation for their alleged protected activity.
[Nuclear and Environmental Digest X C and X D] DIRECT EVIDENCE OF RETALIATORY MOTIVE; STATEMENTS THAT REQUIRE THE DRAWING OF AN INFERENCE ARE CIRCUMSTANTIAL, NOT DIRECT EVIDENCE
In Hall v. United States Dept. of Labor, Administrative Review Board, No. 05-9512 (10th Cir. Feb. 13, 2007), the Complainant argued that the ARB had failed to properly evaluate purported direct and circumstantial evidence of retaliation. The court recited the law in regard to direct evidence:
"Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (alterations and quotations omitted), overruled on other groundsby Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Direct evidence requires "proof of an existing policy which itself constitutes discrimination," Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir. 1996) (quotations omitted), or "oral or written statements on the part of a defendant showing a discriminatory motivation," Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). "A statement that can plausibly be interpreted two different ways--one discriminatory and the other benign--does not directly reflect illegal animus, and, thus, does not constitute direct evidence." Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002) (quotation omitted). Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements. See Shorter, 188 F.3d at 1207.
Slip op. at 13-14. Upon review of the evidence claimed by the Complainant to constitute direct evidence, the court found that all of it was only evidence from which retaliatory purpose could arguably be inferred. In other words, it was not direct evidence but circumstantial evidence. In one instance of purported direct evidence of retaliation (that a Commanding General had called the Complainant a "traitor"), the ARB had rejected the credibility determination of the ALJ, but had adequately explained its reasons for doing so. The court also found substantial evidence to support the ARB's finding that even if the statement had been made, there was no evidence to suggest that the Complainant subjectively perceived this comment as "hostile."
[Nuclear and Environmental Digest X C] DIRECT EVIDENCE OF RETALIATION; IF DRAWING OF INFERENCE IS REQUIRED, THE EVIDENCE IS NOT DIRECT EVIDENCE
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007),
PDF |
HTM
the ARB described direct evidence of retaliation:
Direct evidence of retaliation is "smoking gun" evidence; evidence that conclusively links the protected activity with the adverse action. Such evidence must speak directly to the issue of discriminatory intent and may not rely on the drawing of inferences. Direct evidence does not include "stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process."
Slip op. at 34 (footnotes omitted).
[Nuclear & Environmental Digest X C]
EVIDENCE; BROAD RANGE OF RELEVANCE IN CIRCUMSTANTIAL EVIDENCE
CASE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided the ALJ with guidance for
a remand proceeding in determining evidence admissibility:
... The Secretary and this Board have stated that ... the ALJ as a general rule
should refrain from excluding evidence on a technical basis but should consider factors
relevant to reliability and probative value in determining the weight to be accorded
contested evidence....
In ruling on the relevancy of evidence on remand, the ALJ
must apply a standard consistent with the broad range of circumstantial evidence that may
be probative of the question of retaliatory intent. See Seater [v. Southern
California Edison, ARB No. 96-013, ALJ No. 1995-ERA-13 (ARB Sept. 27,
1996)], slip op. at 4-8 (construing controlling regulation regarding relevancy at
29 C.F.R. §24.5(e)(1) (1995), in relationship with directory regulation at 29 C.F.R.
§18.403 and mandate of Section 7(c) of the Administrative Procedure Act, 5
U.S.C. §556(d)). The standard provided by Section 24.6(e)(1) regarding the
exclusion of only such evidence as is "immaterial, irrelevant or unduly
repetitious," incorporates the standard provided by Section 7(c) of the APA, 5
U.S.C. §556(d), and differs from the analogous provision found in the Rules of
Practice and Procedure for Administrative Hearings before the Office of Administrative
Law Judges, at 29 C.F.R. §18.403. See Seater, slip op. at 6 n.8.[42] On
remand, the ALJ must also re-examine the exclusion of evidence that he found to be
cumulative, ... in view of the foregoing standard, and he must provide the parties an
opportunity to respond accordingly.
___
[42] As stated by the Board in the Seater decision, "The mandate
of Section 24.5(e)(1) is consistent with the nature of the evidence presented in a
circumstantial evidence case of retaliatory intent, some of which may appear to be of little
probative value until the evidence is considered as a whole . . . ." Seater,
slip op. at 6 n.8.
Slip op. at 33 (some citations and footnotes omitted).
[Nuclear & Environmental Digest X C]
APPLICABILITY OF REEVES TO PART 24 WHISTLEBLOWER CASES
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided instructions to the ALJ for
a remand proceeding, reminding him to "evaluate the evidence in accordance with general
principles applicable to an employment discrimination complaint that is founded on
circumstantial evidence." The member continued:
The recent decision of the United States Supreme Court in Reeves v.
Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000), rev'g 197 F.3d
688 (5th Cir. 1999) contains a comprehensive discussion of the parties' burdens under the
framework provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), a case arising under Title VII of the Civil Rights Act of 1964 that has been
regularly applied to Part 24 whistleblower cases by the Secretary, this Board and the
United States Courts of Appeals, see, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d
271, 277 (7th Cir. 1995). We note two basic principles that have frequently been relied on
by the Secretary and this Board in whistleblower cases that are quoted in Reeves.
First, as stated in St. Mary's Honor Center v. Hicks, 450 U.S. 502 (1993), to find
discrimination established, "[i]t is not enough . . . to disbelieve the employer; the
factfinder must believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center, 450 U.S. at 519, quoted in Reeves, 120 S.Ct. at
2108. The second guideline that we believe is particularly instructive is the observation of
the Court in United States Postal Service Board of Governors v. Aikens, 460 U.S.
711 (1983), that "[t]here will seldom be 'eyewitness' testimony as to the employer's
mental processes" for purposes of proving intentional discrimination.
Aikens, 460 U.S. at 716, quoted in Reeves, 120 S.Ct. at 2105-06. Finally,
we note the guidance provided by the United States Court of Appeals for the Eighth
Circuit in Ellis Fischel State Cancer Hosp. v. Marshall, a case which arose under
the whistleblower protection provision of the Energy Reorganization Act of
1974,"[t]he presence or absence of retaliatory motive is a legal conclusion and is
provable by circumstantial evidence even if there is testimony to the contrary by
witnesses who perceived lack of such improper motive." 629 F.2d 563, 566 (8th
Cir. 1980).
Slip op. at 41-42.
[Nuclear & Environmental Digest X C]
EVIDENCE; PROBATIVE VALUE OF PURPORTED ADMISSION BY SECRETARY
OF ENERGY
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121,
ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14,
2000), Complainant sought to reopen his case for the receipt of deposition testimony of a former
Secretary of Energy which allegedly constituted an admission that the Department of Energy
engaged in a pattern and practice of discrimination against whistleblowers. The ARB denied the
request to reopen, finding that this admission would have no probative value to show that, in
Complainant's particular cases, Complainant was discriminated against.
[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE; SUDDEN, UNEXPLAINED DECLINE IN
PERFORMANCE EVALUATION; SHIFTING EXPLANATIONS
In Keene v. Ebasco Constructors,
Inc., 95-ERA-4 (ARB Feb. 19,
1997), the Board found that Complainant was laid-off due to contempt for
Complainant's
protected activity based on a supervisor's various, unsupported explanations
and unexplained
downgrade in Complainant's performance rating; the temporal proximity between
the
supervisor's
knowledge of Complainant's complaints and the layoff; Complainant's value to
Respondent as a
certified electrician with unescorted access; the accuracy of Complainant's
complaints and
evidence of an attempted coverup; animus exhibited by several supervisors; and
the amount of
work affected by the alleged violations. This evidence outweighed factors
such as the fact that
three of seven electricians laid off were as qualified as Complainant (the
Board pointed out that
the record did not show whether those three had unescorted access clearance);
the fact that
Complainant was rehired twice after the lay-off (the Board pointed out that
the rehiring was only
over strong protected by several supervisors); and the fact that Complainant
and another worker
had earlier acknowledged that the layoff was not retaliatory (the Board
pointed out that plausible
explanations had been supplied for those earlier statements and that
circumstantial evidence can
prove retaliatory motive even it a witness testified that such a motive was
not perceived).
[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE MAY PROVE RETALIATORY PURPOSE
EVEN WHEN COMPLAINANT DID NOT PERCEIVE SUCH A MOTIVE
In Keene v. Ebasco Constructors,
Inc., 95-ERA-4 (ARB Feb. 19,
1997), Respondent pointed out as evidence of non-retaliatory motives that
Complainant and a
co-worker had both acknowledged earlier that Complainant's layoff was not
retaliatory. The
Board,
however, considered other circumstantial evidence and Complainant's and the
co-worker's
plausible explanations of their earlier statements in finding that the layoff
was motivated by
contempt for Complainant's protected activity. The Board stated that
"the presence or
absence of retaliatory motive is provable by circumstantial evidence even if a
witness testifies
that
he did not perceive such a motive." Slip op. at 10 (citations omitted).
EVIDENCE; RETALIATORY INTENT CASE REQUIRES FULL PRESENTATION OF
BROAD RANGE OF EVIDENCE
[N/E Digest X C; XI E 3]
In retaliatory intent cases that are based on circumstantial evidence, ...
fair adjudication of
the complaint 'requires full presentation of a broad range of evidence that
may prove, or
disprove,
retaliatory animus and its contribution to the adverse action taken.'
Timmons v. Mattingly
Testing Servs., Case No. 95-ERA-40, ARB Dec., June 21, 1996, slip op. at
10-11 [footnote
omitted]; see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3,
Ch. 16,
Evidence (1980)."
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
RELEVANCY OF INCIDENTS PRECEDING OR GIVING RISE TO PREVIOUS
COMPLAINT RESOLVED BY SETTLEMENT [N/E Digest X C]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ
erred in sustaining the Respondent's objections to testimony
relevant to incidents that preceded or gave rise to a previous
ERA complaint filed by the Complainant that was resolved by a
settlement agreement. Such evidence was relevant to the question
of retaliatory animus in regard to the instant complaints.
X C Use of circumstantial evidence
The presence or absence of retaliatory motive is a legal
conclusion and is provable by circumstantial evidence even if
there is testimony to the contrary by witnesses who perceived
lack of such improper motive. Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).
X C Relevance of events outside scope of actionable
complaint
In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ
Nov. 24, 1992), aff'd (Sec'y Nov. 24, 1992), the
administrative law judge found that only those events occurring
within thirty days of the filing of the complaint were actionable
under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all
relevant events as evidence of a possible pattern of
discrimination irrespective of their time of occurrence.
X C Circumstantial evidence
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
X C Burden of proof may be carried by direct or
circumstantial evidence
A complainant may carry his or her burden of proof on any element
of a discrimination claim by direct or circumstantial evidence.
"The presence or absence of a retaliatory motive is a legal
conclusion and is provable by circumstantial evidence . . .
." Ellis Fischel State Cancer Hosp. v. Marshall, 629
F.2d 563, 566 (8th Cir. 1980). Bartlik v. Tennessee Valley
Authority, 88-ERA-15 (Sec'y June 24, 1992), slip op. at
3.
X C Relevance of events outside scope of actionable
complaint
In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ
Apr. 26, 1989), aff'd (Sec'y Nov. 24, 1992), the
administrative law judge found that only those events occurring
within thirty days of the filing of the complaint were actionable
under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all
relevant events as evidence of a possible pattern of
discrimination irrespective of their time of occurrence.
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
[Nuclear and Environmental Digest X C and X D] DIRECT EVIDENCE OF RETALIATORY MOTIVE; STATEMENTS THAT REQUIRE THE DRAWING OF AN INFERENCE ARE CIRCUMSTANTIAL, NOT DIRECT EVIDENCE
In Hall v. United States Dept. of Labor, Administrative Review Board, No. 05-9512 (10th Cir. Feb. 13, 2007), the Complainant argued that the ARB had failed to properly evaluate purported direct and circumstantial evidence of retaliation. The court recited the law in regard to direct evidence:
"Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (alterations and quotations omitted), overruled on other groundsby Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Direct evidence requires "proof of an existing policy which itself constitutes discrimination," Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir. 1996) (quotations omitted), or "oral or written statements on the part of a defendant showing a discriminatory motivation," Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). "A statement that can plausibly be interpreted two different ways--one discriminatory and the other benign--does not directly reflect illegal animus, and, thus, does not constitute direct evidence." Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002) (quotation omitted). Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements. See Shorter, 188 F.3d at 1207.
Slip op. at 13-14. Upon review of the evidence claimed by the Complainant to constitute direct evidence, the court found that all of it was only evidence from which retaliatory purpose could arguably be inferred. In other words, it was not direct evidence but circumstantial evidence. In one instance of purported direct evidence of retaliation (that a Commanding General had called the Complainant a "traitor"), the ARB had rejected the credibility determination of the ALJ, but had adequately explained its reasons for doing so. The court also found substantial evidence to support the ARB's finding that even if the statement had been made, there was no evidence to suggest that the Complainant subjectively perceived this comment as "hostile."
[Nuclear and Environmental Digest X C] DIRECT EVIDENCE OF RETALIATION; IF DRAWING OF INFERENCE IS REQUIRED, THE EVIDENCE IS NOT DIRECT EVIDENCE
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007),
PDF |
HTM
the ARB described direct evidence of retaliation:
Direct evidence of retaliation is "smoking gun" evidence; evidence that conclusively links the protected activity with the adverse action. Such evidence must speak directly to the issue of discriminatory intent and may not rely on the drawing of inferences. Direct evidence does not include "stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process."
Slip op. at 34 (footnotes omitted).
[Nuclear & Environmental Whistleblower Digest X D]
ANALYTICAL APPROACH; ARB ASSUMES (BUT NOT DECIDES) THAT CERTAIN ELEMENTS OF WHISTLEBLOWER COMPLAINT WERE ESTABLISHED WHERE CASE MAY BE DISPOSED OF UPON FAILURE TO ESTABLISH ONE ELEMENT OF THE CAUSE OF ACTION
In Smalls v. South Carolina Electric & Gas, ARB No. 01 078, ALJ No. 2000 ERA 27 (ARB Feb. 27, 2004), the ARB approached the decision on the merits as follows:
The record contains ample evidence, which, if fully credited, could establish three of the four elements necessary for Smalls to carry his burden in this whistleblower complaint B protected activity, the employer's knowledge of protected activity, and adverse action. .... Because we dispose of this complaint based on Smalls' failure to establish that protected activity was a contributing factor in SCE&G's decision to rate Smalls' performance "below expectations," we will assume but not decide that when Smalls raised concerns about the design, installation, and testing of the SIMPLEX system, he engaged in protected activity. Furthermore, we assume without finding that this protected activity was known to the decision makers involved in Smalls' "below expectations" rating, and that such a rating constitutes adverse action. Specifically, we will limit our analysis to the issue of whether Smalls established that this protected activity contributed to his "below expectations" performance rating for the period ending December 1, 1999.
[Nuclear and Environmental Digest X D]
DIRECT EVIDENCE OF RETALIATION; SUPERVISOR'S DISAPPROVAL OF
EMPLOYEE'S COMPLAINING TO GOVERNMENT AGENCIES
A supervisor's disapproval of an employee's complaining to a government agency indicates
discriminatory intent. See Blake v. Hatfield Elec. Co., 1987-ERA-4, slip op. at 5 (Sec'y
Jan. 22, 1992) (supervisor's comment that the complainant used the NRC as a threat found to
"virtually amount[] to direct evidence of discrimination). The supervisor who issued a
disciplinary notice for tardiness opined at the hearing that Complainant was not justified in
making a complaint to OSHA -- that "I feel that [Complainant] is using OSHA and that the
warning was merited." The ARB found that this statement was very strong evidence of
discriminatory intent. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 5-6 (ARB Feb. 9, 1999).
[N/E Digest X D]
"SMOKING GUN" EVIDENCE MAY BE REBUTTED
In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26,
1997), a recruiter made a log entry about an inquiry she had made with
Respondent about resume
submissions she had made in regard to engineering positions, to wit:
"...Only 1 hire per
month & nobody ruled out on this req[uest] except former emp[loyee] Chuck
Webb."
Webb was the Complainant. Although the record indicated that Respondent was
requiring a
college degree that Complainant did not have, two other submitted candidates
also did not have a
college degree. Although this notation appeared to be direct evidence of
discrimination, the
recruiter testified that she made the notation about Complainant because she
only inquired about
his fate and not the fate of any of the other candidates who had been
submitted. The ARB found
the explanation credible, and noted that "[n]otwithstanding a seeming
smoking gun' in the
record, other evidence may show that there was not discriminatory
intent." Slip op. 14
(citation omitted).
[N/E Digest X D]
DIRECT EVIDENCE OF DISCRIMINATION; CONTEXT
In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30,
1997), the
Board noted that the following statement by Alyeska's Manager of Quality
Services to the Vice
President for Human Resources, appeared to be direct evidence of
discrimination: "ASIS
[an inspection service hired by Alyeska, and Complainant's employer] will
probably suspend
Acord. Acord will probably become a whistleblower shortly." The Board,
however, found
that, in context, these comments did not constitute sufficient evidence of
discrimination.
Complainant had a longstanding history of performance deficiencies, and at the
time the
statement was made, frustration with Complainant in regard to lack of timely
documentation of
reports was evident.
DIRECT EVIDENCE OF DISCRIMINATION
[N/E Digest X D]
In Smith v. Esicorp, Inc., 93-ERA-16
(Sec'y Mar. 13, 1996), a statement in a suspension notice
that the Complainant was "creating quality concerns:
not adhering to self verification method and work
requirements" was not direct evidence of animus. The
Secretary found that the phrase was ambiguous, and that when
viewed in context, merely reflected the supervisor's concern
that the Complainant created quality concerns by knowingly
working in violation of procedures.
DIRECT EVIDENCE OF DISCRIMINATION; DARTEY NOT
APPLICABLE [N/E Digest X D]
Where there is direct evidence of discrimination, it is not
necessary to engage in the familiar Dartey v. Zack Co.
allocation of burdens of proof and burdens of production
applicable in cases limited to circumstantial evidence. It is
prohibited retaliation where the evidence of discrimination and
the discriminatory act are the same, such as discriminatory
statements in an employment reference check. Gaballa v.
The Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996).
In Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), the Secretary recited the familiar
allocation of burdens of proof and production, but interestingly
changed the introductory language to state that "a
complainant who seeks to rely on circumstantial evidence of
intentional discriminatory conduct must first make a
prima facie case of retaliatory action by the respondent .
. ." Slip op. at 6 (bold-italics added).
DIRECT EVIDENCE OF RETALIATORY DISCRIMINATION; EVIDENCE OF
DISCRIMINATION MUST BE "PATENT" [N/E Digest X D]
Holding that a supervisor's statement that "I don't want
any contractors working on problems which they discovered"
was not direct evidence of retaliatory discrimination against a
"staff augmentee" employee when he was not rehired, the
court in Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), noted that "[t]he distinction
between direct and circumstantial evidence in employment
discrimination cases is not self-evident."
Bartlik, 1996 U.S. App. LEXIS 294 at *7 n.5
(citations omitted). The court observed that "[i]n the
context of discrimination cases in this circuit . . . we have
held that direct evidence is evidence which, if believed,
'requires the conclusion that unlawful discrimination was at
least a motivating factor.' See Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995) (citing
Terbovitz v. Fiscal Court of Adair Cty., 825 F.2d 111, 115
(6th Cir. 1987)). With direct evidence, the existence of unlawful
discrimination is 'patent.' Id."
Bartlik, 1996 U.S. App. LEXIS 294 at *7 n.5.
X D Direct evidence of discrimination
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the respondent's articulated legitimate reason
for laying off the complainant -- his low numerical score on his
most recent performance evaluation -- was found to be a pretext
for retaliation. Particularly persuasive in this regard was a
supervisor's comment on the performance evaluation that the
complainant "[u]ses NRC as a threat", which virtually
amounts to direct evidence of discrimination.
This was not merely a "stray remark" in the work place,
Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O'Conner, J., concurring), but meets the test that the remark
"speak[s] directly to the issue of discriminatory intent,
[and] . . . relate[s] to the specific employment decision in
question." Randle v. LaSalle Telecommunications,
Inc., 876 F.2d 563, 569 (7th Cir. 1989); see also Beshears
v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), and cases
cited therein (comments by a manager or those closely involved in
employment decisions may constitute direct evidence of
discrimination).
Where there is direct evidence that discrimination motivated the
adverse employment decision, the sole question is whether the
respondent has met its burden of "proving by a preponderance
of the evidence that it would have made the same decision even if
it had not take the [illegitimate criteria] into account."
Price Waterhouse, 490 U.S. at 258 (plurality opinion).
In the instant case, the respondent, by relying exclusively on
the performance rating as justification for discharging the
complainant, did not offer any convincing non-discriminatory
rationale for its evaluation.
Even if an inference must be drawn from the supervisor's comment
that the evaluation was discriminatorily motivated, see Lee v.
Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir.
1982) (no inference of discrimination required when direct
evidence is presented), the statement was strong evidence that
the complainant's low score was pretextual.
X D Direct evidence of discrimination
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
X D Direct evidence of discrimination
Comments made by a manager or those closely involved in
employment decisions may constitute direct evidence of
discrimination. Lederhaus v. Donald Paschen & Midwest
Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26,
1992), slip op. at 5, citing Randle v. LaSalle
Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989);
Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.
1991).
If credibility determinations are critical, the agency must
articulate them with sufficient clarity to determine whether the
ultimate finding of liability is supported by the record.
Courts have held that "[w]here an agency's decision concerns
specific persons based upon determination of particular facts and
the application of general principles to those facts . . . courts
'demand that the decision-maker's opinion indicate an appropriate
consideration of the evidence. . . .'"
Bartlik v. Tennessee Valley Auth., 88-ERA-15 (Sec'y
Dec. 6, 1991), quoting Tieniber v. Heckler, 720 F.2d 1251,
1255 (11th Cir. 1983) (citation omitted).
[Nuclear and Environmental Whistleblower Digest X E 1]
CREDIBILITY DETERMINATIONS;
FINDING THAT COMPLAINANT WAS CREDIBLE INADEQUATE BASIS FOR EVALUATION OF CONFLICTING EVIDENCE
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 ALJ erred when he made a general and conclusory finding that the Complainant was credible, but did not explicitly evaluate the credibility of 50 other witnesses (40 of whom were adverse to the Complainant). The Board wrote: "[A]n ALJ may not evade his responsibility to evaluate conflicting testimony by many witnesses on various disputed issues of fact by the expedient of decreeing the complainant as the most credible witness on any issue." Slip op. at 29 (citation omitted).
[Nuclear & Environmental Whistleblower Digest X E] CREDIBILITY; COMPLAINANT'S LACK OF CREDIBILITY AS A WITNESS AND INSUBORDINATE CONDUCT AS A EMPLOYEE MAY LEND CREDENCE TO RESPONDENT'S CASE
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB when considering whether the Complainant had proved by a preponderance of the evidence that the Respondent intentionally discriminated against her in violation of the whistleblower laws, took into consideration Complainant's credibility and conduct. The ARB agreed with the ALJ that Complainant's credibility and conduct were central to the resolution of the case both because her testimony conflicted with other witnesses, and because, the ARB quoting the ALJ "her perception of events is the principal component in her belief that she has been discriminated against for her protected activity."
Deferring to the ALJ's demeanor based credibility determinations, and finding more than adequate support in the record for the ALJ's findings that Complainant was an exceedingly poor witness and insubordinate and disrespectful employee, the ARB held that her "qualities as a witness cast doubt upon her interpretation of the evidence and give credence to EPA managers' testimony that they made decisions pertaining to her based upon considerations that the law recognizes as legitimate and non discriminatory."
[Nuclear & Environmental Whistleblower Digest X E] INDICIA OF WITNESS RELIABILITY FOR RESOLVING CONFLICTS IN TESTIMONY
In addition to demeanor while testifying, indicia of witness reliability that may be applied to resolve relevant conflicts in the testimony include "witness self interest, whether or not a witness' testimony is internally consistent, inherently improbable, or either corroborated or contradicted by other evidence. See Bartlik v. Tennessee Valley Auth., No. 88 ERA 15, slip op. at 5 n.2 (Sec'y Apr. 7, 1993) and cases there cited." Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002).
[N/E Digest X E]
CREDIBILITY DETERMINATIONS; FACT THAT RESPONDENT COMMITTED
VIOLATIONS EXACTLY AS ALLEGED BY COMPLAINANT
In Keene v. Ebasco Constructors,
Inc., 95-ERA-4 (ARB Feb. 19,
1997), the Board found that the fact that Respondent did commit a
falsification of records exactly
as alleged by Complainant, and then attempted to conceal this wrongdoing from
the licensee,
undermined the credibility of several of Respondent's witnesses, and lent more
credence to
Complainant's account.
EVIDENCE; PROBATIVE VALUE OF EXPERT WHOSE PAYMENT IS
CONTINGENT ON OUTCOME OF LITIGATION
[N/E Digest X E]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), the ALJ excluded a proposed expert witness on the question of
whether surveillance
by Respondent was possible on the ground that the witness' objectivity was so
questionable as to
be of little probative value. The witness had made statements indicating
sympathy toward
Complainant and antipathy toward Respondent, and indicated that he intended to
discount his fee
if Complainant did not prevail. The Board agreed with the ALJ that the
witness' ability to present
reliable testimony in the case, but stated that the appropriate course would
have been to admit the
evidence and consider the reliability of the testimony when weighing the
evidence. The Board
found the error harmless, however, because of the lack of evidence on
surveillance generally
made Respondent's capability to engage in surveillance unimportant. Such
testimony would be
relevant, however, if Respondent had contended that such surveillance was not
technically
possible.
The Board also noted the impropriety of contingent fee arrangements for expert
witnesses.
CREDIBILITY DETERMINATIONS; NOT REVERSIBLE ERROR NOT TO MAKE
INDIVIDUAL CREDIBILITY DETERMINATIONS WHERE THE VAST MAJORITY OF
WITNESSES SUPPORTED THE ALJ'S CONCLUSIONS, THE COMPLAINANT'S
TESTIMONY WAS NOT CREDIBLE, AND ALJ'S DECISION WAS EXTREMELY
THOROUGH
[N/E Digest X E]
Noting that "[w]ithout exception, the findings of fact
rendered by the ALJ reflect[ed] a thorough review of the record
and a careful evaluation of the evidence" the Secretary
in Straub v. Arizona Public Service Co., 94-ERA-37
(Sec'y Apr. 15, 1996), rejected the Complainant's position that
the ALJ committed reversible error by not addressing the
credibility of each of the witnesses who testified in the twenty-
three days of testimony before the ALJ. The Secretary observed
that Complainant's case rested heavily on his own, uncorroborated
testimony, and that the ALJ had properly discredited the
Complainant's testimony on several dispositive issues. The
Secretary also observed that the vast majority of witnesses
supported the ALJ's conclusions.
CREDIBILITY DETERMINATIONS; REQUIREMENT THAT ALJ EXPLICITLY
STATE WHAT EVIDENCE IS ACCEPTED OR REJECTED [N/E Digest X E 1]
To be sustained, all factual findings, including credibility
determinations, must be supported by substantial evidence on the
record considered as a whole. Where a factfinder's credibility
determinations are not based on adequate reasons, his or her
findings cannot be upheld. All relevant, probative and available
evidence must be weighed by the factfinder who must make explicit
statements as to what portions of the evidence are accepted or
rejected. A full explanation of why specific evidence was
rejected is imperative, since a factfinder cannot reject
evidence for no reason or for the wrong reason. Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct.
23, 1995), quoting Cotter v. Harris, 642 F.2d 700, 706-07
(3d Cir. 1979).
TESTIMONY; LACK OF CORROBORATING WITNESSES [N/E Digest X E]
Where a Complainant testified that she had learned about
certain instances in which a former supervisor had provided
adverse references to her employers or to a prospective
employer, but that testimony was not corroborated and the
former supervisor denied speaking to that Complainant's co-
workers or being aware that she worked for the respective
employers, the Secretary found that the Complainant had
failed to produce the witnesses necessary for substantiation
of her blacklisting charge. Leveille v. New York
Air National Guard, 94-TSC-3 and 4, slip op. at 9-10
(Sec'y Dec. 11, 1995).
X E Credibility determinations; sufficient clarity
Where credibility determinations are critical to an ALJ's
recommended decision, and ALJ's statement in the introduction of
the decision that his "findings and conclusions are based
upon [his] observation of the appearance and demeanor of the
witness. . . . " is not sufficient for the Secretary to
review the recommended decision.
Bartlik v. Tennessee Valley Auth., 88-ERA-15 (Sec'y
Dec. 6, 1991)
[NOTE: The Secretary found that the "ALJ did not cite or
discuss any testimony or exhibits which support that conclusion,
nor did he resolve any of the apparent conflicts in the record .
. ., or state which testimony he credited and which he did
not." She then detailed in length the problems with the
case that made credibility determinations so critical, and
remanded the case to the ALJ.]
X E 1 Sufficient clarity of credibility
determinations
In Bartlik v. Tennessee Valley Authority, 88-ERA-15
(Sec'y Dec. 6, 1991), the Secretary remanded the case to the
administrative law judge to revise his recommended decision and
order specifically addressing several evidentiary questions
"and supporting his inferences and conclusions with explicit
references to the record." Slip op. at 17. Citing
Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983),
the Secretary stated that "[i]f credibility determinations
are critical, the agency must articulate them with sufficient
clarity to determine whether the ultimate finding of liability is
supported by the record." She faulted the ALJ for not
making specific credibility findings. Slip op. at 5. She held
that the "ALJ's statement in the introduction of the
decision that his 'findings and conclusions are based upon my
observation of the appearance and demeanor of the witnesses . .
.' is not sufficient for the Secretary to review the recommended
decision." Slip op. at 9.
The Secretary rejected the complainant's argument that the ALJ's
credibility determination that the respondent's witnesses were
credible was based on an analysis of the testimony rather than on
the demeanor of the witnesses, where, although the ALJ found that
the testimony on the issue was uncontradicted, he specifically
stated that "I had an opportunity to observe both of these
witnesses for [the respondent], and I find their testimony to be
fully credible."
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at 7.
[Nuclear & Environmental Digest X E 2]
CREDIBILITY; DEMEANOR
In Jenkins v. U.S. Environmental Protection
Agency,1988-SWD-2 (ALJ July 10, 1998), the ALJ noted that Complainant's
"credibility is the key issue in this case, both because there is frequent conflict between her
version of events and that of other witnesses and because her perception of events is the principal
component in her belief that she has been discriminated against for her protected
activities." Id. @ 21-22. The ALJ thoroughly analyzed the record and noted his
observations about Complainant's demeanor, and found that Complainant was so emotionally
involved in the case that her testimony was inherently unreliable, and absent corroborating
evidence, insufficient to establish any controverted fact.
WITNESSES; REQUIREMENT THAT ALJ MAKE FINDINGS REGARDING
WITNESS DEMEANOR
[N/E Digest X E 2]
An ALJ should provide findings concerning witness demeanor in connection with
resolution of conflicts in the pertinent controverted testimony. In resolving
conflicts in
testimony, however, the ALJ may also rely on factors related to the content of
the witnesses'
testimony, such as internal inconsistency, inherent improbability, important
discrepancies,
impeachment and witness self-interest. Seater v.
Southern California Edison Co., 95-ERA-13 (ARB Sept. 27, 1996).
CREDIBILITY DETERMINATIONS; SCOPE OF DEFERENCE TO DEMEANOR
FINDINGS VERSUS FINDINGS BASED ON SUBSTANCE OF TESTIMONY [N/E Digest X E 2]
Credibility findings that are explicitly based on the
demeanor of the witnesses may be accorded exceptional weight by a
reviewing court. These demeanor findings are distinct from
credibility findings based on the substance of the testimony
itself, e.g., internal inconsistency, inherent
improbability, important discrepancies, impeachment, and witness
self-interest. Frady v. Tennessee Valley
Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
Where the respondent presented evidence that it terminated the
complainant's employment based on past horseplay, ineffective
supervision of subordinates and production problems, rather than
the complainant's engaging in protected activity, inasmuch as
this evidence tended to show that the respondent's action was
motivated by legitimate, nondiscriminatory reasons, the Secretary
concluded that it rebutted the complainant's prima facie case (if
indeed the complainant had in fact even established a prima facie
case).
The Secretary noted that the explanation given by the respondent
at the time of the discharge was consistent with the testimony
adduced at the hearing. [Editor's note: apparently the purpose
of this note is to show credibility]
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at 7.
[N/E DIGEST X E 3]
EVIDENCE OF PRIOR CONVICTIONS; ADMISSIBILITY/WEIGHT
In Ishmael v. Calibur Systems, Inc., 96-SWD-2 (ALJ June 23,
1997),
evidence of prior convictions offered by Respondent to rebut deposition
testimony of
Complainant that he had never been convicted of any crime except speeding
tickets was admitted
into evidence by the ALJ, but afforded little weight because they had not been
produced pursuant
to a specific discovery request, and because the convictions were more than
ten years old and
were for misdemeanors. See 29 C.F.R. § 18.609; United States v.
Sims,
588 F.2d 1145, 1147 (6th Cir. 1978).
X. E. 3. Consistency of testimony
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.
Respondent asserted that it was error for the ALJ to credit any
of Complainant's testimony because Complainant was not truthful
about his employment after Respondent fired him, and Complainant
lied about the telephone call.
The Secretary dismissed this exception because Respondent did not
identify specific parts of Complainant's testimony that were
relied on by the ALJ that were not supported by other parts of
the record, and led the ALJ to erroneous conclusions.
In addition, the Secretary stated that the ALJ's conclusion,
which he adopted, that Respondent was motivated by retaliation
when it fired Complainant, was based largely, if not entirely, on
documentary evidence, the testimony of Respondent's witnesses,
and the taped meetings between Complainant and one of
Respondent's employees.
X E 3 Deposition testimony, credibility can be judged
based on consistency of testimony
Where a witness' testimony is offered by deposition, it is not
improper for the ALJ to make credibility determinations that are
based on evidentiary inconsistencies which did not require the
ALJ witness the witness' demeanor. SeeScerbo v.
Consolidated Edison Co. of New York, Inc., 89-CAA-2
(Sec'y Nov. 13, 1992).
X.E.3. Failure to supply corraborating
records
In Crosier v. Westinghouse Hanford Co., 92-CAA-3
(Sec'y Jan. 12, 1994), the Complainant asserted that he engaged
in protected activities by making reports to various government
agencies about unexploded ordnance and a pesticide dump at the
Respondent's nuclear reservation. In support of his testimony,
the Complainant only submitted unauthenticated photographs.
Although he stated that he had copies of the reports and provided
them to counsel for Westinghouse, he did not offer any of the
documents into evidence. The Secretary concluded that the
Complainant's uncorroborated testimony and unauthenticated
photographs did not establish that he engaged in protected
activities. If the Complainant possessed copies of the documents
that show his protected activities, he should have offered them
into evidence.
X. E. 3. Consistency of testimony
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.
Respondent asserted that it was error for the ALJ to credit any
of Complainant's testimony because Complainant was not truthful
about his employment after Respondent fired him, and Complainant
lied about the telephone call.
The Secretary dismissed this exception because Respondent did not
identify specific parts of Complainant's testimony that were
relied on by the ALJ that were not supported by other parts of
the record, and led the ALJ to erroneous conclusions.
In addition, the Secretary stated that the ALJ's conclusion,
which he adopted, that Respondent was motivated by retaliation
when it fired Complainant, was based largely, if not entirely, on
documentary evidence, the testimony of Respondent's witnesses,
and the taped meetings between Complainant and one of
Respondent's employees.
In Pillow v. Bechtel Construction, Inc., 87-ERA-35
(Sec'y July 19, 1993), Respondent's counsel initially indicated
that he would not call two witnesses, but then took their
deposition one day before the hearing with only one day's notice
to opposing counsel, and submitted the deposition at trial.
Complainant's counsel did not participate in the depositions.
The ALJ received both depositions over strenuous objection by
Complainant's counsel.
In view of the lack of cross examination, the Secretary given
little weight to the testimony in the depositions.
EVIDENCE; LACK OF OPPORTUNITY FOR RESPONDENT TO DEPOSE WITNESS
NOT GROUND FOR DENIAL OF TESTIMONY WHERE RESPONDENT WAS PROVIDED
A WRITTEN STATEMENT OF PROPOSED TESTIMONY
[N/E Digest X E 4]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), the ALJ refused to allow the testimony of a severely ill witness to
be taken by
telephone before Respondent was given an opportunity to depose that witness
on the ground that
without that opportunity, Respondent would be deprived of an adequate
opportunity to respond
to the witness' testimony. The Board held that a statement signed by the
proposed witness given
to Respondent one week prior to the hearing provided it with notice of the
matters on which the
witness could be expected to testify. The Board also noted that the expected
testimony
concerned matters about which Respondent should have been readily able to
frame a rebuttal
response.
The hearing before the administrative law judge in an Energy
Reorganization Act whistleblower case is de novo. Smith v.
Tennessee Valley Auth., 87-ERA-20 (Sec'y Apr. 27, 1990).
Thus, a document prepared by the employer in response to
investigative proceedings before the Wage and Hour Administrator
is not dispositive. Shusterman v. Ebasco Servs.
Inc., 87-ERA-27 (Sec'y Jan. 6, 1992) (ALJ had questioned
a witness who had actually determined Complainant's performance
ratings and found that his testimony was more credible than a
letter from a management official that had indicated that
Complainant had been laid-off, in part, due to his part in
refusing to do vendor evaluations).
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 Court of Appeals addressed the possibility that complaints
concerning employment discrimination could be intertwined with
matters specifically concerning substantive questions of nuclear
safety. For that reason it declared that jurisdiction over
employment matters resides in the Secretary of Labor and the NRC
is not free to accept jurisdiction concurrently or in its
discretion. However, to safeguard the rights of all parties
involved in such an employment proceeding, a memorandum of
understanding was signed between the Department of Labor (DOL)
and the Nuclear Regulatory Commission (NRC) concerning employee
protection. See 47 Fed. Reg. 54585 (1982). This memo
recognizes that each agency agrees to exchange information
concerning any particular allegation. DOL is to investigate and
conduct hearings on employee complaints and can order a violator
to abate the violation. DOL is to notify the NRC of any
complaint filed with DOL alleging discrimination under the ERA
and of any hearings on a complaint. The NRC does not have direct
authority to provide the employee with a remedy but the NRC may
provide technical assistance to the Secretary pursuant to the
memorandum.
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
a
10 g 1
X G 1 Technical assistance from the NRC
Although section 5851 of the ERA vests jurisdiction over employee
discrimination matters in the Secretary of Labor, in the event
that substantial questions involving competence in nuclear energy
are involved, the NRC may provide technical assistance to the
Secretary pursuant to a memorandum of understanding between the
DOL and NRC, which is published at 47 Fed. Reg. 54585 (1982).
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).
In Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Nov. 18, 1993), Complainant stipulated that the amount of
unemployment compensation benefits he received would be deducted
from the back pay award. Noting that the Secretary normally does
not deduct unemployment compensation from a back pay award, the
Secretary nonetheless found that the stipulation was not so
contrary to public policy as to warrant nonenforcement in the
instant case. The Secretary noted that absence a provision in a
stipulation that might be contrary to public policy, a
stipulation is like a settlement or a contract and the parties
should be held to their bargain.
Goldstein v. Ebasco Constructors, Inc., 86-ERA-36
(Sec'y Apr. 7, 1992), rev'd on other grounds, Ebasco
Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb.
19, 1993)
See also Graefenhain v. Pabst Brewing Co., 870
F.2d 1198, 1206 (7th Cir. 1989) (stipulation binding unless
relief from stipulation necessary to prevent manifest
injustice, or stipulation entered into through inadvertence
or based on erroneous view of the facts or law).
STIPULATIONS; AGREEMENT BETWEEN COUNSEL ON TRIAL PROCEDURE
[N/E Digest X H]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), Complainant objected to receipt of one of Respondent's exhibits, at
which point
Respondent's counsel reminded the ALJ of the parties' agreement the previous
day when
Respondent waived objection to one of Complainant's proffers in exchange for
Complainant's
agreement not to object to the variety of exhibits now being offered by
Respondent. The ALJ
commented that it was not his role to enforce contracts between counsel. The
Board noted
"that the parties are considered to be bound by their stipulations.
See, e.g., 29
C.F.R. §§ 18.17, 18.51." Slip op. at 15-16 n.25.
X H Stipulations enforced unless contrary to public
policy
The parties' stipulations in ERA whistleblower complaints will be
enforced unless contrary to public
policy. Thus, where a stipulation on the payment of attorney
fees and costs was not contrary to public
policy, the Secretary approved it in Tritt v. Fluor
Constructors, Inc., 88-ERA-29
(Sec'y May 31, 1995).
X H Separate statements in post-hearing briefs may
be viewed as stipulation
Where both the complainant and the respondent agreed in their
post-hearing briefs to the ALJ to use a seven/seven shift for
calculating back pay, the statements in the separate documents
may be viewed as a stipulation as to how to calculate back pay.
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.]
Where a settlement agreement included a provision in which the
parties agreed to maintain the strictest confidentiality of the
terms of the agreement, and the parties at the hearing asked the
ALJ to keep the agreement under seal if possible, but that if it
were not possible that it would not cause the agreement to fail,
the Secretary accepted the agreement but left the unsealed the
agreement and incorporated it into the administrative record of
the case. She noted that the parties had not presented any
reason for sealing record in regard to the settlement agreement.
Vogel v. Florida Power Corp., 90-ERA-49 (Sec'y Mar.
12, 1991).
[Nuclear and Environmental Whistleblower Digest X I]
EVIDENCE; PROTECTION OF CONFIDENTIAL OR PRIVILEGED INFORMATION
In Wallace v.CH2M Hill Group, Inc., 2004-SWD-3, the ALJ addressed the problem of protecting purportedly confidential information disclosed in the course of an administrative adjudication. In Wallace v.CH2M Hill Group, Inc., 2004-SWD-3 (ALJ Nov. 3, 2004), the ALJ denied a motion for a protective order filed by the Respondent where there were no declarations or affidavits offered in support of the motion and the Respondent's treatment of the issues involved was too superficial. The Respondent's motion would have covered both materials made available in discovery but never filed with the ALJ, and pleadings and evidence that would become subject to FOIA as records of the Secretary of Labor. The ALJ noted that there is a presumptive right of access to adjudicative filings, including before Article I tribunals. The ALJ granted the Respondent time to submit additional evidence and argument regarding the ALJ's authority and the procedures to be followed. The ALJ later issued a protective order governing the production and use of confidential information during the pendency of the action and thereafter. Wallace v.CH2M Hill Group, Inc., 2004-SWD-3 (ALJ Dec. 6, 2004) ("Protective Order"). In a separate order, the ALJ voiced doubt that pleadings, motions and materials filed in the record as evidence may be shielded from public disclosure, and therefore declined to make any a priori rulings that pleadings may be sealed; rather the ALJ directed the parties to first negotiate the issue and, if unsuccessful, file a motion to seal pleadings, motions or evidence in the same manner as in a U.S. District Court. The ALJ noted that there is a distinction between confidentiality concerns and the invocation of privileges, and directed that if a privilege is claimed, privilege logs should be prepared. Wallace v.CH2M Hill Group, Inc., 2004-SWD-3 (ALJ Dec. 6, 2004) ("Order on Respondent's Application for Protective Order").
X I Sealing of record
In Guity v. Tennessee Valley Authority, 90-ERA-10
(ALJ May 19, 1993) (prehearing order), the ALJ placed a document
concerning the Complainant's mental capacity to proceed to
hearing in a restricted access portion of the administrative
record pursuant to 29 C.F.R. § 18.56. The Respondent had
quoted a physician's recommendation concerning the Complainant in
violation of a United States District Court order of seal. Both
parties agreed that the document violated the district court's
order.
The ALJ found that the district court's order of seal prevented
public access to this material by operation of law. In the
alternative, he found that the Complainant's interest in privacy
outweighed any public interest in the document, issued a
protective order, and sealed the document.
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.
Respondent excepted to the admission into evidence of annotated
copies of Complainant's report on purported violations of the
environmental laws, arguing that introduction of those exhibits
was prohibited by Respondent's claim of attorney-client
privilege, and that it placed Respondent at an unfair
disadvantage because Respondent could not rebut it through other
privileged documents or by permitting its employees to answer
questions about the exhibits without having waived the privilege.
The Secretary reviewed Supreme Court Standard 503-Lawyer Client
Privilege, the Model Rules of Professional Conduct, the Model the
Code of Professional Responsibility, the Texas Disciplinary Rules
of Professional Conduct, and the Fifth Circuit decision of Doe
v. A Corp., 709 F.2d 1043 (5th Cir. 1983) (decided under the
Canons of Ethics). This authority uniformly indicates that an
attorney may reveal a communication or advice to a client when
the attorney and client become opponents in a subsequent
controversy, to the extent necessary to defend his or her rights.
The Secretary concluded, therefore, that it was not error for the
ALJ to admit in evidence annotated copies of Complainant's draft
report.
X J Attorney as witness; disqualification of law
firm
In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ July
27, 1990) (predecision order) (applying 11th Circuit law), the
ALJ analyzed a conflict in laws, and concluded that under the
relevant law, the fact that a member of the law firm representing
the respondent was going to be called as a witness did not
disqualify the entire firm.
X. J. Evidence; revealing a communication or
advice to a client when the attorney and
client become opponents in a subsequent
controversy
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.
Respondent excepted to the admission into evidence of annotated
copies of Complainant's report on purported violations of the
environmental laws, arguing that introduction of those exhibits
was prohibited by Respondent's claim of attorney-client
privilege, and that it placed Respondent at an unfair
disadvantage because Respondent could not rebut it through other
privileged documents or by permitting its employees to answer
questions about the exhibits without having waived the privilege.
The Secretary reviewed Supreme Court Standard 503-Lawyer Client
Privilege, the Model Rules of Professional Conduct, the Model the
Code of Professional Responsibility, the Texas Disciplinary Rules
of Professional Conduct, and the Fifth Circuit decision of Doe
v. A Corp., 709 F.2d 1043 (5th Cir. 1983) (decided under the
Canons of Ethics). This authority uniformly indicates that an
attorney may reveal a communication or advice to a client when
the attorney and client become opponents in a subsequent
controversy, to the extent necessary to defend his or her rights.
The Secretary concluded, therefore, that it was not error for the
ALJ to admit in evidence annotated copies of Complainant's draft
report.
In Macktal v. Garde, No. 89-2533 JGP (D.C. D.C. May
11, 1992) (unpublished memorandum opinion) (available at 1992
U.S. Dist. LEXIS 6330), a district court stayed plaintiff's legal
malpractice action (which is grounded in purported malfeasance,
fraud and duress concerning a settlement of an ERA whistleblower
complaint) pending resolution of the administrative proceeding.
Most of the decision is beyond the scope of DOL proceedings. The
court, however, stated
There can be no doubt that the Department of Labor is
the governmental body with particular expertise in the area
of whistleblower actions, and this action calls into direct
question the integrity of a settlement agreement purportedly
reached in that tribunal. [footnote omitted] ....
Hearsay is not inadmissible in administrative proceedings merely
because it is hearsay. See 29 C.F.R. §§ 18.44(b) and
24.5(e) (1989). 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) slip op. at 24 n.16.
HEARSAY; DISCUSSION OF COMPLAINANT'S PROTECTED ACTIVITIES
AMONG MANAGERS [N/E Digest X L]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ
erred in sustaining objections to testimony adduced for the
purpose of showing the degree to which the Complainant s
protected activity was discussed among the Respondent's managers,
noting that hearsay only involves statements offered to prove
the truth of the matter asserted, 29 C.F.R. § 18.801(c), and
that then existing mental, emotional or physical conditions are
not excluded by the hearsay rule. 29 C.F.R. § 18.803(a)(3).
X L Use of hearsay in administrative proceedings
In Mackowiak v. University Nuclear Systems, Inc.,
82-ERA-8 (ALJ July 25, 1986), settled while under review
(Sec'y Apr. 18, 1989), the Director of the Field Office of
Investigations (Region 5) of the NRC testified in regard to
allegations of deliberate wrongdoing by management personnel of
Respondent that he had received from other employees of
Respondent on or around the time that Complainant was terminated.
On cross-examination, he declined to state the names of the
informing employees. Respondent moved to strike based on hearsay
upon hearsay and based on inability to make effective cross-
examination.
The ALJ noted that hearsay is admissible in administrative
proceedings, quoting Calhoun v. Bailar, 626 F.2d 145 (9th
Cir. 1980):
Not only is there no administrative rule of automatic
exclusion of hearsay evidence, but the only limit to the
admissibility of hearsay evidence is that it bear
satisfactory indicia of reliability . . . [T]he test of
admissibility [requires] that the hearsay be probative and
its use fundamentally fair. [citations omitted]
Id. at 148. See also 20 C.F.R. § 18.44(b).
The ALJ also outlined the law regarding informer's privilege,
noting that the leading case is Roviaro v. United States,
353 U.S. 53, 77 S. Ct. 623, and that although Roviaro was
a criminal case, its principles have been applied to civil cases
in general, and in the administrative context, to claims arising
under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
See, e.g., Donovan v. Forbes, 614 F. Supp. 124.
Combining the hearsay and informer's privilege principles, the
ALJ concluded that whether the investigator's testimony should be
stricken depended on (1) its reliability, (2) whether its use
will unduly prejudice the defendant, and (3) whether the NRC's
need to protect its sources outweighs the defendant's need for
their disclosure. He also considered whether the underlying
purpose of section 5851 of the ERA would be served by admission
of the testimony.
The ALJ considered in regard to reliability the indicia stated in
Calhoun v. Bailor:
the bias of the declarant
whether the statements are signed and sworn as opposed
to anonymous, oral, or unsworn
whether or not the declarant is available to testify,
and if not, whether no evidence is available,
the credibility of the witness testifying to the
hearsay, and
whether or not the hearsay is corroborated by other
evidence.
Calhoun, 626 F.2d at 149.
Weighing these factors, the ALJ found the investigator to be a
very credible witness and that most of what he testified to was
corroborated. He found that Respondent was prejudiced by the
testimony, but that it would be alleviated by according little
weight to that part of the investigator's testimony that was not
corroborated by other evidence. He found that NRC's role in
protecting safety of nuclear power plants was of such magnitude
that its need to protect its sources outweighed Respondent's need
for their disclosure. Finally, the ALJ found that the underlying
purpose of the employee protection provision of the ERA would not
be served if an employee who gave evidence of prohibited
discrimination on behalf of a fellow employee could incur similar
discrimination as a consequence.
The ALJ, therefore, admitted the testimony, but gave little
weight to uncorroborated allegations, and no weight to
unsupported expressions of opinion concerning the motives
Respondent's management personnel.
Expert testimony on the efficacy of procedures and standards
established in NRC regulations to protect workers from airborne
radioactive materials is inappropriate in a hearing under section
5851 of the ERA, and may not be introduced.
Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13,
1984):
In Ashcraft v. University of Cincinnati, 83-ERA-7
(Sec'y Nov. 1, 1988), the Secretary ruled that a NRC Notice of
Violation letter and appendix (which purportedly found that some
of Complainant's allegations could lead to violations, personnel
exposure to radiation and other consequences) was not admissible
primarily because
complainants are protected from the earliest stage in
which they are engaged in the protected activity and it does
not matter in determining whether adverse action against the
complainant was taken because of the protected activity,
that the end result of the activity was or was not an NRC
notice of violation.
but also because
Section 24.7(b) of 29 C.F.R. Part 24 requires that the
Secretary's final order be based on the record and
recommended decision of the ALJ, and since the NRC Notice
was not part of the record below, it could not be
considered.
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
X N NRC Notice of Violation not in existence at time
of ALJ's decision will not
be reviewed by the Secretary
In Norman v. Niagara Mohawk Power Corp., 85-ERA-13
(Sec'y June 1, 1995), the
Complainant filed a request for remand and consolidation, which
was apparently based primarily on a
Notice of Violation to Respondent from the NRC over a year after
the ALJ hearing. The Secretary
found that although the Notice recited discriminatory treatment
of the Complainant, since it was not in
existence at the time of the ALJ's decision in the case, it was
not a proper subject for his review. 29
C.F.R. § 24.6(b).
[Editor's note: It is unclear why the Secretary cited 29
C.F.R. § 24.6(b)].
ADMINISTRATIVE NOTICE; NRC INVESTIGATIVE REPORT
[N/E Digest X N]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec y Feb. 14, 1996), the
Deputy Secretary took notice of a NRC investigative report
concerning the Complainant's complaint, finding that the
report was a relevant public document. The Deputy
Secretary, however, ultimately disagreed with the NRC's
conclusions.
In Hill v. TVA, 87-ERA-23 and 24 (Sec'y Apr. 21,
1994), the Secretary criticized Complainants for citing ALJ
recommended decisions in their brief before the Secretary, in a
manner that implied that they were final decisions of the
Secretary. The Secretary stated that "ALJ recommended
decisions in ERA cases are simply that and have no precedential
value unless explicitly adopted by the Secretary." Slip op.
at 4-5 n.4.
X O Secretary's decisions as binding precedent
The Secretary's decisions in ERA cases are binding precedent
under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 551-706 (1982). Section 3 of the APA, 5 U.S.C.
§ 552(a)(2), provides that "[e]ach agency in accordance
with published rules, shall make available for public inspection
and copying --
(A) final opinions . . . as well as orders, made in
the adjudication of cases; . . . .
Opinions and orders of the Secretary of Labor are available for
inspection and copying in the Office of Administrative Appeals in
accordance with the Department of Labor's regulations. 29 C.F.R.
§ 70.12(b) (1986). To the extent applicable on the facts
and legal questions presented in a given case, the Secretary's
decisions are binding on all Department of Labor administrative
law judges. See Lockert v. Pullman Power Products Corp.,
84-ERA-15 (Aug. 19, 1985).
Wilson v. Bechtel Construction, Inc., 86-ERA-34
(Sec'y Feb. 9, 1988).
[see also VIII A 3, in regard to ALJ's obligation to follow
Secretary's decisions]
X O Precedential value of ALJ decision
An ALJ's recommended decision has no precedential value of its
own. See Hale v. Baldwin Associates, 85-ERA-37
(Sec'y Sept. 29, 1989).
In Lassin v. Michigan State University, 93-ERA-31
(Sec'y June 29, 1995), the Complainant sought the reopening of
the record to receive his and his attorney's affidavits attesting
to testimony given by employees of the Respondent at an
arbitration hearing conducted after the closing of the record in
the case. A transcript of the arbitration hearing was not
available. The Secretary noted that generally, arbitral
proceeding and decisions concerning discrimination are considered
by the Secretary in employee protection proceedings, given the
strong federal policy favoring arbitration agreements arrived at
through collective bargaining procedures. Nonetheless, the
Secretary concluded that since what was being offered was simply
one party's recounting of the testimony, which is inherently
unreliable, the record would not be reopened.
[Nuclear and Environmental Whistleblower Digest X P]
EVIDENCE; ATTORNEY-CLIENT PRIVILEGE IS NOT A PERSE BAR ON THE OFFENSIVE USE OF PRIVILEGED DOCUMENTS IN A WHISTLEBLOWER COMPLAINT
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 Complainant was an in-house attorney who wrote a memorandum concluding that a subsidiary of the Respondent was exposed to liability for violating several federal environmental statutes. The memorandum was not well received by several employees of the Respondent. The Complainant was later fired and filed a complaint with DOL alleging that the firing was in retaliation for the memorandum. The Wage and Hour Division found in favor of the Complainant, and a request for ALJ hearing was filed.
During discovery, the Complainant sought production of his memorandum and related documents; the Respondent refused to produce the documents citing attorney-client privilege. Ruling on a motion to compel, the ALJ held that the documents, although confidential, were admissible, citing Doe v. A Corp., 709 F.2d 1043, 1048 (5th Cir. 1983). Before the Complainant could seek enforcement of the ALJ's order in district court, the ALJ issued a recommended decision finding that the Complainant's internal complaint was not protected activity under Fifth Circuit law. On appeal, the Secretary of Labor reversed the ALJ's finding on protected activity, and concluded that in-house attorneys are not excluded from protection under the ERA. On remand the Respondent continued to refuse to produce the memorandum and related documents, but the ALJ admitted several draft versions in the possession of the Complainant and found that the Complainant had been fired, in part, because of having written the memorandum. The ALJ, however, denied the claim on other grounds. [Editor's note: During the remand proceeding, the ALJ sealed the record in regard to the privileged documents].
On review, the Secretary found in favor of the Complainant, concluding in so finding that the memorandum was admissible evidence. The Secretary remanded for a calculation of back pay. By the time that the ALJ's decision on back pay was issued, the ARB had been delegated the authority to issue whistleblower decisions. The ARB concluded that, under federal law, no exception to the attorney client privilege existed to permit the admission of the memorandum and related documents. The ARB, finding that the without the privileged documents the cause of action failed, dismissed the complaint.
On review, the Fifth Circuit affirmed the ARB's finding that federal common law governs attorney-client privilege in ERA whistleblower complaints, but reversed its conclusion that an attorney may use privileged documents only as a shield and never as a sword. The Fifth Circuit found that the case law only supports a narrower proposition -- that a party cannot simultaneously use confidential information as both a shield and a sword -- that "when a party entitled to claim the attorney-client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege." Slip op. at 28. The Fifth Circuit went on find that the ARB had misinterpreted several decisions as standing for the proposition that the attorney-client privilege is a per se bar to an attorney's use of privileged information in a claim against his former client or employer. Rather, the Fifth Circuit found controlling its holding in Doe v. A Corp. (the decision cited by the ALJ in ruling on the original discovery dispute).
&bnsp; In sum, neither the current Secretary nor Coastal has directed us to any case that can be stretched to stand for the broad proposition espoused by the ARB, that the attorney-client privilege is a perse bar to retaliation claims under the federal whistleblower statutes, i.e., that the attorney-client privilege mandates exclusion of all documents subject to the privilege. As we observed in Doe, "[a] lawyer . . . does not forfeit his rights [as an employee] simply because to prove them he must utilize confidential information," and we are disinclined to hold that he has. The ARB seriously misinterpreted our � and other circuits' � case law treating the attorney-client privilege. There are ample opportunities � such as those adverted to in both Doe and Kachmar � to protect privileged information such as that which Coastal now seeks to protect. The ALJ followed these procedures, and we find no error in his doing so.
Slip op. at 34-35 (footnote omitted). The court made it clear that its ruling was limited to the context of a hearing before an ALJ rather than a jury: "Today, we merely hold that no rule or case law imposes a perse ban on the offensive use of documents subject to the attorney-client privilege in an in-house counsel's retaliatory discharge claim against his former employer under the federal whistleblower statutes when the action is before an ALJ." Slip op. at 35.
[Nuclear and Environmental Whistleblower Digest X P]
ADVERSE INFERENCE RULE; UNCALLED WITNESS' TESTIMONY MUST HAVE TENDED TO THROW LIGHT ON THE ISSUES
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 ALJ erred when he drew an adverse inference against the Respondent when it did not call a General as a witness to rebut certain testimony of the Complainant concerning whether the Complainant had been informed that the General had called him a traitor. The Board found that there was testimony by other witnesses rebutting the Complainant's version of the event and that the General could have only testified as to whether he ever called the Complainant a traitor in a place where the person who purportedly told the Complainant of the comment may have overheard the remark. The Board stated that "the adverse inference rule applies when, among other reasons, 'there exists an unexplained failure or refusal of a party . . . to produce evidence that would tend to throw light on the issues.' Gilbert v. Cosco Inc., 989 F.2d 399, 405-406 (10th Cir. 1993) (internal quotations omitted) and cases cited therein." Slip op. at 28. The Board found that the General's testimony would not have tended to throw light on the conflicting testimony.
[Nuclear and Environmental Whistleblower Digest X P]
PURPOSE OF WHISTLEBLOWER PROTECTION; NO SPECIAL DUTY OF CARE TO EMPLOYEES WITH PRE-EXISTING PROBLEMS
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 ALJ erred when he placed an affirmative burden on the Respondent to accommodate the Complainant's performance problems based on a theory that employers take employees on an "as is" basis and will be responsible for aggravation of exacerbation of pre-existing problems. The Board held that the whistleblower protections only prohibit employers from discriminating against whistleblowers; they do not require such favorable treatment.
[Nuclear and Environmental Whistleblower Digest X P]
ADMISSIBILITY OF EVIDENCE OF REMEDIAL ACTION; ADMISSIBLE WHERE BEING USED FOR IMPEACHMENT
In McNeill v. Crane Nuclear Inc., ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005), the ALJ did not err in receiving into evidence an internal memo detailing remedial actions taken after two engineers had complained of being fired for objecting to a deficient work package where it was being used for impeachment, as permitted by FRE 407.
[Nuclear and Environmental Whistleblower Digest X P]
METHOD OF ANALYSIS; ASSUMING THAT CERTAIN ELEMENTS OF COMPLAINT ESTABLISHED WHEN OTHER ELEMENT IS DISPOSITIVE
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 a certain action of the Complainant was protected activity and that a certain action of the Respondent was adverse employment action. These assumptions permitted the ARB to avoid extended discussion of those issues and to focus its analysis on the ultimate question of whether the Complainant proved that the Respondent discriminated against him because of his protected activity. The Board found that the Respondent had presented legitimate non-discriminatory reasons for the adverse employment actions and that the Complainant had not shown by a preponderance of the evidence that these reasons were pretext.
To the same effectJones v. United States Enrichment Corp., ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004) (ARB assumes, without finding, that the Complainant engaged in protected activity where it decided the case on the ground that the Complainant had failed to establish that his protected activity contributed to the decision to termination his employment).
[Nuclear & Environmental Whistleblower Digest X P]
ANALYSIS; PERMISSIBLE TO ASSUME, WITHOUT DECIDING, ELEMENTS OF THE CAUSE OF ACTION WHERE THE COMPLAINT FAILS ON ANOTHER ELEMENT
In Pafford v. Duke Energy Corp., ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), the ARB assumed, without deciding, that Complainants had engaged in protected activity. It was not necessary to reach the protected activity element of the case because the Complainants had failed to establish that Respondent's proffered reason for discharging the Complainants was pretext for discrimination.
[Nuclear & Environmental Whistleblower Digest X P]
EVIDENCE; DOCUMENT EXAMINERS; HANDWRITING ANALYSIS; ADMISSIBILITY v. PROBATIVE VALUE
In Overall v. Tennessee Valley Authority, 1999 ERA 25 (ALJ Mar. 16, 2004), several document examiners testified in regard to retaliatory and harassing handwritten and typed notes directed at the Complainant. Complainant's attorney sought a ruling that the Respondent's experts "should be limited in their testimony to observations of similarities and differences between known documents and questioned documents." The ALJ found persuasive authority to the effect that the fact that document examination has not been standardized is not necessarily a bar to the admissibility of such expert testimony questions about reliability go to weight of the evidence, not admissibility. The ALJ, however, found that the expert handwriting and typewriter testimony was "inconclusive and does not show that [the Complainant] or a TVA employee or a TVA supervisor authored the harassing notes on record."
[Nuclear & Environmental Whistleblower Digest X P] ADVERSE INFERENCE BASED ON SPOLIATION OF EVIDENCE; DESTRUCTION OF DOCUMENTS UNDER FEDERAL RECORDS RETENTION SCHEDULE
In Pickett v. Tennessee Valley Authority, ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003), Complainant alleged that Respondent's failure to provide documents he had requested under the FOIA and Privacy Act amounted to the spoliation of evidence, and entitled him to an inference that the evidence was unfavorable to Respondent. The ARB held that the FOIA and Privacy Act issues fell beyond the authority of ALJs in environmental whistleblower cases and that Complainant failed to show that Respondent had engaged in improper conduct in this connection. Respondent had advised that it destroyed certain documents in accordance with its records retention schedules. This destruction was four years before Complainant filed suit, and Complainant did not show that Respondent lacked a routine document destruction policy or that the documents were not destroyed and were being withheld in connection with this litigation. The ARB thus agreed with the ALJ that Complainant was not entitled to adverse inferences or sanctions under 29 C.F.R. Part 18 as a consequence of his failure to obtain information he sought under the FOIA and Privacy Acts.
[Nuclear and Environmental Digest X.P.]
SUMMARY REVERSAL OF ALJ; HEAVY BURDEN ON PROPONENT OF MOTION
The ARB denied Complainant's motion for summary reversal of the ALJ's recommended
decision in Mourfield v. Plaas,
ARB Nos. 00-055 and 00-056, ALJ No. 1999-CAA-13 (ARB Nov. 24, 2000). The Board wrote:
"A party seeking summary disposition has a heavy burden of establishing that the merits of
his or her case are so self-evident that further briefing and argument of the issues presented
would not benefit the adjudicator and that the merits of the case are so patent that expedited
action is warranted. Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-298 (D.C.
Cir. 1987)."
To the same effect: Pickett v. Tennessee Valley Authority, ARB No. 00-076,
ALJ Nos. 1999-CAA-25 and 2000-CAA-9 (ARB Dec. 6, 2000).
[Nuclear & Environmental Digest X P]
ADVERSE INFERENCE; NO INFERENCE DRAWN BY OSHA'S LACK OF
OPPOSITION WHERE OSHA WAS NEVER PARTY
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121,
ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9,
2000), the ARB denied Complainant's motion to draw the adverse inference that OSHA and the
Office of the Solicitor did not oppose his motion to reopen where OSHA was never a party to the
action.
[Nuclear & Environmental Digest X P]
SIMILARITY BETWEEN BRIEFS OF CO-RESPONDENTS; COMPLAINANTS'
REQUEST FOR ADVERSE INFERENCE
In Cox v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ARB
Apr. 21, 1999), Complainants filed a motion requesting that the ARB draw adverse inferences
because a motion filed by a Federal respondent (DOE) was similar to a motion filed by a private
Respondent (Lockheed Martin). The ARB found the motion to be frivolous, concluding that
similarities in pleadings in cases with multiple respondents is not ususal or surprising. Thus, the
ARB denied Complainants' motion.
[N/E Digest X P]
PROOF OF MAILING; COMPLAINANT'S TESTIMONY SUFFICIENT BECAUSE IT IS
REASONABLE TO PRESUME THAT MAIL GETS LOST
In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB
May
28, 1997), Complainant testified that he mailed a letter to a state agency and
that the agency had
not responded; that letter was found by the Board to be was sufficient to
raise a cognizable
complaint under the employee protection provision of the FWPCA. Respondent
answered that
Complainant had provided no proof that the letter was actually mailed or
received. The Board,
however, found that "[Complainant's testimony was] persuasive when
considering that it is
a reasonable presumption that mail may occasionally be lost or misdelivered,
distributed to the
wrong office or section of a governmental agency, lost within the agency, or
otherwise
misplaced, forgotten or unprocessed." Slip op. at 5 n.5 (citations
omitted).
[N/E Digest X P]
ADVERSE INFERENCES RELATING TO WITNESSES NOT CALLED
In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB
May
28, 1997), the Board did not question Complainant's testimony that he made
internal complaints
to several managers because Respondent could have called these managers to
rebut the assertion,
but did not.
Complainant had wanted application of an inference that all testimony of
witnesses not called by
Respondent would have been adverse to Respondent. The Board noted that it did
draw an
adverse inference in regard to the internal complaint issue, but that
Respondent's failure to call
various personnel to testify did not oblige the ALJ to resolve all issues with
respect to which they
may have testified against Respondent. The Board quoted Rockingham
Machine-Lunex Co.
v. NLRB, 665 F.2d 303, 305 (8th Cir. 1981): "The rule permits an
adverse inference to
be drawn; it does not create a conclusive presumption against the party
failing to call the
witness."
SCOPE OF REVIEW; APPROPRIATE TO FOCUS ON DISPOSITIVE
ISSUE
[N/E Digest X P]
Where there is overwhelming evidence in support of the
respondent's legitimate, nondiscriminatory reason for terminating
the employment of the complainant, engaging in a detailed
analysis of the other specific issues in the case is not
necessary. SeeStraub v. Arizona Public Service
Co., 94-ERA-37, slip op. at 9-10 (Sec'y Apr. 15, 1996).
ARBITRATION DECISIONS; CONSIDERATION IN ERA PROCEEDINGS
[N/E Digest X P]
In Straub v. Arizona Public Service Co., 94-
ERA-37 (Sec'y Apr. 15, 1996), the Secretary extended to the ERA
the ruling of Roadway Express v. Brock, 830 F.2d 179, 181
(11th Cir. 1987), an STAA case, that pertinent arbitration
decisions must be considered during the adjudication of a
whistleblower complaint, with the probative weight to be accorded
such decisions dependent on the adequacy provided the employee's
rights in the arbitral proceeding.
EVIDENCE; FAILURE TO CALL WITNESSES; ADVERSE INFERENCE
[N/E Digest X P]
In Smith v. Esicorp, Inc., 93-ERA-16
(Sec'y Mar. 13, 1996), the Secretary declined to draw
unfavorable inferences solely because the Respondent did not
call witnesses. The Secretary observed, however, that a
failure to call witnesses places a respondent at risk that
the complainant's uncontradicted evidence will be found
credible.
WEIGHING OF EVIDENCE; BENEFIT OF DOUBT TO COMPLAINANT
[N/E Digest X P]
It is error for the ALJ to view the evidence in the
light most favorable to the complainant after there has been
a full hearing with presentation of evidence by all parties.
At that point, the evidence should be viewed neutrally. In
contrast, it is proper to view the evidence in favor of the
non-moving party on a motion for summary decision.
Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).
