Office of Administrative Law Judges
United States Department of Labor
June 5, 1995
This newsletter covers the materials that became available during
the period from April 28 to June 2, 1995.
NOTICE OF CHANGE TO RULES OF PRACTICE AND PROCEDURE
On May 19, 1995, the Department published as a Final Rule certain
amendments to filing and service
requirements in proceedings before the Office of Administrative
Law Judges.
60 Fed. Reg. 26970 (May 19, 1995). The Final Rule is
identical to the interim rule published on August 15, 1994,
see
59 Fed. Reg. 41874
(Aug. 15, 1994), except that it conforms service when a party is
represented by an attorney to the
practice in the United States District Courts. See Fed.
R. Civ. P. 5(b). Under the Final Rule,
when a party is represented by an attorney, a litigant only needs
to serve that attorney rather than both
the attorney and the other party.
Other amendments finalized by the May 19, 1995 publication
permit parties to use fax or overnight courier services
where in the past they could only use telegrams,
provide restrictive standards for filing by fax,
and
eliminate the filing of routine discovery documents
with the presiding ALJ.
RECENT SIGNIFICANT DECISIONS
ADVERSE ACTION; BLACKLISTING; MOTIVE
In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May
18, 1995), the Secretary concluded that the placement of the
Complainant on a "denied access list" was not
"blacklisting" within the meaning of the ERA without
evidence of improper motivation.
ADVERSE ACTION; POOR REFERENCE
In Gaballa v. The Atlantic Group, 94-ERA-9
(ALJ May 16, 1995), the ALJ concluded that the rationale of
Earwood v. Dart Container Corp., 93-STA-16 (Sec'y
Dec. 7, 1994), to the effect that the giving of a poor
reference need not lead to loss of employment opportunities to be
prohibited under the STAA, is readily extended to the ERA. In
Gaballa, the Complainant had employed a
reference checking agency to determine what kind of reference he
would get from the Respondent.
CIRCUMSTANTIAL EVIDENCE; CLEAR WRITTEN POLICY
In Collins v. Florida Power Corp., 91-ERA-47 and
49 (Sec'y May 15,
1995), the Secretary took into consideration in regard to
retaliatory motive that the Respondent
had a clear written policy that its computers could only be
used for nonbusiness purposes after
regular business hours and only for non-profit-making
situations. In Collins,
the Complainant admitted using his computer for a private
business.
CIRCUMSTANTIAL EVIDENCE; FAILURE TO FOLLOW ESTABLISHED
CHANNELS
An employee's failure to follow established channels for
voicing concerns and an
unreasonable manner of complaining are relevant to the
respondent's motivation and may
remove statutory protection. Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y
May 18, 1995).
CONTINUING VIOLATION THEORY; ACT WITHIN LIMITATIONS PERIOD
NEED NOT BE
"LEGALLY SUFFICIENT" BUT MUST BE AN ACT OF
DISCRIMINATION
In Moody v. Tennessee Valley Authority, 91-ERA-40
and 92-ERA-49
(Sec'y Apr. 26, 1995), the Secretary noted that in Title VII
cases, the discriminatory act
occurring within the limitations period need not be a
"legally sufficient" claim itself to
invoke the continuing violation theory, but it must be an
act of discrimination. In the case
before the Department, there was no adverse action, and thus
no incident of discrimination
within the limitations period. Thus, the continuing
violation theory did not apply to make the
incidents outside the limitations period cognizable ERA
complaints.
DAMAGES; AWARD FOR PERMANENT PSYCHOLOGICAL DISORDER
In Gaballa v. The Atlantic Group, 94-ERA-9
(ALJ May 16, 1995), the
ALJ recommended an award of $75,000 in compensatory damages
for emotional distress
where there was unrefuted testimony that the Complainant
developed a permanent
psychological disorder resulting from the discrimination.
DECISION AND ORDER AS FINAL OR RECOMMENDED; REMAND FOR
INVESTIGATION
In Odom v. Anchor Lithkemko/International
Paper, 95-WPC-2 (ALJ
Apr. 28, 1995), the ALJ found that the period for filing was
equitably tolled, and remanded the
case to the Wage and Hour Division for an investigation.
The ALJ concluded that his order
was not dispositive on the merits, and being interlocutory
in nature, was not subject to
transmittal to the Secretary for a final order pursuant to
29 C.F.R. § 24.6.
GRADUAL OR PROGRESSIVE DISCIPLINARY POLICY
In Clifton v. United Parcel Service,
94-STA-16 (Sec'y May 9, 1995),
evidence that the Respondent's practice was to use a gradual
disciplinary process not used in
the Complainant's case was found to indicate that the
articulated reason for discharging the
Complainant was at least partially pretextual, which caused
the analysis to proceed to the dual
or mixed motive stage.
In Collins v. Florida Power Corp., 91-ERA-47 and
49 (Sec'y May 15, 1995), however, the Secretary found that,
despite the existence of a progressive discipline
policy, there was no evidence that there was a failure to
apply a progressive discipline for illicit
reasons. The Secretary quoted with approval the ALJ's
observation that the Respondent
"was entitled to fire the Complainants for good
reasons, bad reasons, or no reason, 'as
long as it's not a discriminatory reason.'" Slip op.
at 12-13, quoting transcript at 525.
The Secretary also took into consideration that the
Complainants' activities were of a type that
could discredit or embarrass the company and that one of the
Complainants had not been
entirely forthcoming in discussing his outside activities
when confronted prior to the discharge.
NONDISCRIMINATORY REASON FOR ADVERSE ACTION; ILLEGAL OR
UNREASONABLE
PROTEST ACTIVITIES
In Collins v. Florida Power Corp., 91-ERA-47 and
49 (Sec'y May 15,
1995), one Complainant's theory of coverage was that,
although she had not engaged in any
protected activity, the Respondent discharged her and
another co-worker in an effort to
obscure its motives. Since the Secretary found that the
other Complainant was not retaliated
against for protected activity, he also dismissed the
derivative coverage theory. This case
presents an interesting question of whether a person who
suffers an adverse employment
action as the result of the protected activity of another
person is a covered whistleblower.
In Hollis v. Double DD Truck Lines, Inc.,
84-STA-13 (Sec'y Mar. 18,
1985), a prior Secretary of Labor rejected a derivative
coverage theory. In
Hollis, however, the Complainant refused a
driving assignment because he
was going to help his son-in-law in having a truck inspected
at a rest stop. He did not tell the
Respondent why he was refusing the assignment. The STAA
requires a Complainant to seek
and be unable to obtain correction of an unsafe condition,
which is not an element of the
nuclear and environmental whistleblower statutory
provisions.
PROTECTED ACTIVITY; DISCOMFORT IN DRIVING POSITION
In Ass't Sec'y & Beard v. Apar
Brokerage, 94-STA-39 (Sec'y May
3, 1995), the Complainant established that a lack of legroom
caused him discomfort while
driving, but failed to establish that the discomfort
constituted a reasonable fear of an unsafe
condition sufficient to make his refusal to drive protected
activity under 49 U.S.C. §
31105(a)(1)(B)(ii).
PROTECTED ACTIVITY; MERE CONTACT WITH NRC INVESTIGATOR
PROTECTED
In Collins v. Florida Power Corp., 91-ERA-47 and
49 (Sec'y May 15,
1995), the Secretary found that Complainant's contact with a
NRC investigator was protected
activity, even though the record was not clear as to why the
investigator had interviewed the
Complainant.
In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May
18, 1995), the
ALJ had recommended that a terminated employee not be found
to have engaged in protected
activity when he demanded a meeting with a Vice-President
for the Respondent because this
was not a recognized channel for former or terminated
employees to express concerns. The
Secretary held that it was sufficient that the complaints
were directed to the Respondent's
management, writing that "[a] terminated employee might
be viewed by management as
an even more serious threat to cause trouble or expose
wrongdoing, and the manager could
still retaliate by interfering with prospective
employment." Slip op. at 3 (footnote and
citation omitted).