Office of Administrative Law Judges - United States
Department of Labor
April 4, 1995
HIGHLIGHTS
The following is a quick summary of important recent decisions
and other matters of interest that became available during the
period from February 17 to March 31, 1995.
ADVERSE EMPLOYMENT ACTION; CONSTRUCTIVE DISCHARGE
In Nathaniel v.
Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), the
Secretary held that a finding of constructive discharge requires
proving that working conditions were rendered so difficult,
unpleasant, unattractive, or unsafe that a reasonable person
would have felt compelled to resign, i.e., that the
resignation was involuntary. Thus, the adverse consequences
flowing from an adverse employment action generally are
insufficient to substantiate a finding of constructive discharge.
Rather, the presence of "aggravating factors" is
required.
AFTER-ACQUIRED EVIDENCE RETAINS IMPORTANCE VIS-A-VIS THE
DETERMINATION OF AN APPROPRIATE REMEDY
In
Smith v. Tennessee Valley Authority, 89-ERA-12 (Sec'y Mar.
17,
1995), the Secretary remanded a complaint involving
after-acquired evidence in light of the recent United States
Supreme Court decision in McKennon v. Nashville Banner
Publishing Co., 1995 U.S. LEXIS 699 (Jan. 23, 1995) (ADEA
case), in which it was held that after-acquired evidence of the
employee's wrongdoing is not a complete bar to recovery by the
employee. In the remand order, the Secretary pointed out that
after-acquired evidence must be taken into account in determining
the appropriate remedy, and that, generally, neither
reinstatement nor front pay are appropriate in cases of this
type.
BURDEN OF ARTICULATION FOR COMPLAINANT'S PRIMA FACIE CASE
In the March 1, 1995 newsletter, it was noted that in
Ass't Sec'y & Brown v. Besco Steel Supply, 93-STA-30
(Sec'y
Jan. 24, 1995), the Secretary found that the Complainant's
statement that he was fired was sufficient to establish the
adverse action element of a prima facie case. In
Carroll v. Bechtel Power Corp., 91-ERA-46
(Sec'y Feb. 15, 1995),
Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar.
16,
1995) and
Toland v. Burlington Motor Carriers, Inc., 93-STA-35
(Sec'y
Feb. 27, 1995), the Secretary continued this line of reasoning,
holding that corroborating evidence is not necessary to establish
a prima facie case. In order to present a prima facie case the
complainant need only to present evidence sufficient to prevail
if not contradicted and overcome by other evidence.
Nonetheless, a showing that the respondent was aware of the
complainant's protected activity does not, by itself, establish
the causal element of a prima facie case. A complainant is
required to present evidence that raises an inference that the
protected activity was the likely reason for the adverse action.
Etchason v. Carry Companies of Illinois, Inc., 92-STA-12
(Sec'y
Mar. 20, 1995).
BURDEN OF PROOF AND PRODUCTION; WHETHER THE COMPLAINANT
ESTABLISHED A PRIMA FACIE CASE LOOSES IMPORTANCE AFTER THE
RESPONDENT PRESENTS REBUTTAL EVIDENCE OR ONCE THE RECORD IS
COMPLETE
In
Etchason v. Carry Companies of Illinois, Inc., 92-STA-12
(Sec'y
Mar. 20, 1995), the Secretary noted that "[o]nce a
respondent has presented rebuttal evidence ... the answer to the
question whether the complainant has made a prima facie
showing is not particularly useful. See
Carroll v. Bechtel Power Corp., [91-ERA-46
(Sec'y Feb. 15, 1995)], slip op. at 11 (restating and clarifying
legal principles applicable in whistleblower proceedings). At
that point, 'the real battleground revolves around whether the
reasons articulated by respondent Carry . . . are pretextual,'
and whether Complainant met his ultimate burden of proof.
Complainant's Brief at 4; Carroll, slip op. at 12."
Similarly, in
Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995)
(citing Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y
Feb. 15, 1995), slip op. at 10-11), the Secretary held that once
the record is complete in a case, the answer to the question
whether the Complainant presented a prima facie case is no longer
particularly useful. Logic dictates that if the complainant does
not prevail by a preponderance of the evidence on the ultimate
question of liability, it matters not at all whether he or she
presented a prima facie case.
DAMAGES; COMPLAINT INVOLVING INTERFERENCE WITH FUTURE
JOB PROSPECTS
Where a former employer interfered with the Complainant's
prospects of future employment, because of the indirect
employment relationship, reinstatement was found to be
inappropriate. Once discrimination has been proven, however, a
presumption of entitlement to back pay arises, with the burden
shifting to the former employer to rebut the presumption by
showing that the complainant would not have been hired absent the
discrimination.
Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21,
1995).
EMPLOYEE; FEDERAL PRISON INMATES ARE NOT
"EMPLOYEES"
WITHIN THE MEANING OF THE TSCA OR THE CAA
In
Coupar v. Federal Correctional Institution, El Reno,
Oklahoma,
90-TSC-1 and 91-TSC-3 (Sec'y Feb. 28, 1995), the Secretary held
that the Complainant, a prisoner incarcerated at a federal
correctional facility, is not an employee within the meaning of
the CAA or the TSCA, and therefore could not invoke the employee
protection provisions of those statutes.
But see
Delaney v. Massachusetts Correctional Industries, 90-TSC-2
(Sec'y Mar. 17, 1995), involving a prisoner at a state
correctional facility, in which the Secretary did not make any
reference to whether a state prisoner is covered under the TSCA.
INFERENCE OF CAUSATION; EVIDENCE OF WHOLLY UNPROTECTED
CONDUCT IMMEDIATELY PRECEDING ADVERSE EMPLOYMENT ACTION
Evidence of wholly unprotected conduct immediately
preceding
an adverse employment action may militate against an inference of
causation.
Etchason v. Carry Companies of Illinois, Inc., 92-STA-12
(Sec'y
Mar. 20, 1995) (at ultimate burden of proof stage of analysis).
In Williams v. Carretta Trucking, Inc., 94-STA-7
(Sec'y Feb. 15, 1995), the Secretary, analyzing the caseunder a
dual motive analysis, concluded that because of the Respondent's
unequivocal forced dispatch policy, the Respondent would have
fired the Complainant even if he never complained about the
safety of Respondent's vehicles or threatened to take assigned
vehicles to a DOT inspection.
PROTECTED ACTIVITY; BYPASSING THE CHAIN OF COMMAND TO GO
DIRECTLY TO THE NRC
In
Saporito v. Florida Power & Light Co., 89-ERA-7 and 17
(Sec'y Feb. 16, 1995) (order denying motion forreconsideration),
the Secretary affirmed his earlier decision that an employee who
refuses to reveal his or her safety concerns to management and
asserts the right to bypass the 'chain of command' to speak
directly with the Nuclear Regulatory Commission is protected
under the ERA. The Secretary noted that a respondent in such
circumstances will have an opportunity under the dual motive
analysis to show it would have discharged Complainant, even if he
or she had not insisted on his or her right to speak first to the
NRC, for other legitimate reasons.
See alsoCarson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995)
(failure to observe established channels for making safety
complaints).
PROTECTED ACTIVITY; COMPLAINT TO MEMBER OF GENERAL PUBLIC
In Simon v. Simmons Foods, Inc., 1995 U.S. App.
LEXIS
3715 (8th Cir. 1995) (case below 87-TSC-2), the court affirmed a
decision in which the Secretary had concluded that making health
and safety complaints to a member of the general public (as
opposed to a co-worker, employer/supervisor, union officer, or
newspaper reporter), without demonstrating that the employee is
about to file a complaint or participate or assist in a
proceeding, is too remote from the remedial purposes of the
relied upon whistleblower provisions to be a protected activity.
PROTECTED ACTIVITY; INTERNAL COMPLAINTS UNDER THE SWDA AND
WPCA IN THE FIFTH
CIRCUIT
In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995),
the
Secretary held that internal complaints are protected activity
under the SWDA and the WPCA, even in the Fifth Circuit. The
Secretary distinguished Brown & Root, Inc. v. Donovan,
747 F.2d 1029 (5th Cir. 1984), based on the 1992 amendments to
the ERA, which legislatively overturned that decision.
But see Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th
Cir. 1988), in which the Fifth Circuit noted, with apparent
disapproval, the Secretary's nonacquiescence with the logic of
Brown & Root concerning an internal complaint in a CAA
case.
SETTLEMENT; SECRETARIAL REVIEW NOT REQUIRED IN FWPCA
COMPLAINT
The Secretary in
Biddle v. United States Dept. of the Army, 93-WPC-15
(Sec'y
Mar. 29, 1995), approved the use of Fed. R. Civ. P. 41(a)(1)(ii)
to dismiss a complaint, even though it was evident that a
settlement prompted the parties' stipulation of dismissal. The
Secretary's decision is summary in form, but the underlying
circumstances are stated in the ALJ's recommended order.
Biddle v. United States Dept. of the Army, 93-WPC-15 (ALJ
May
6, 1994). This is a clear departure from the requirements of the
ERA and the CAA, which cannot be dismissed under Rule
41(a)(1)(ii) if a settlement underlies the request to dismiss.
Rule 41(a)(1)(ii) is without leave of the court.
This decision is probably applicable to CERLCA and SWDA
settlements as well. See Editor's note to the
Biddle casenote.