Office of Administrative Law Judges
United States Department of Labor
July 3, 1995
This newsletter covers the materials that became available during
the period from June 2 to June 30, 1995.
AMENDMENT OF COMPLAINT; DISCHARGE DURING COURSE OF
ADMINISTRATIVE PROCEEDING
In Studer v.
Flowers Baking Company of Tennessee, Inc., 93-CAA-11
(Sec'y June 19, 1995), the Secretary
indicated that if the complainant is discharged during the
course of the administrative proceeding, and he or she files
a timely complaint about the discharge, that additional
complaint may be considered by ALJ without remand to Wage
and Hour Division.
ATTORNEY FEE PETITION; RELEVANCE OF EXPECTATIONS OF PAYMENT
BY COMPLAINANT
In Delcore v. W.J.
Barney Corp., 89-ERA-38
(Sec'y June 9, 1995), the Secretary indicated that whether
the complainant was ever actually billed, whether he or she
ever paid any of the time charges, or whether the counsel
ever expected to be paid, is not controlling in the
consideration of the reasonableness of an attorney fee
petition.
ATTORNEY MISCONDUCT; SETTLEMENT OF PROCEEDING
In Rex v. Ebasco
Services, Inc., 87-ERA-6
and 40 (ALJ May 22, 1995), the ALJ recommended approval of a
settlement between the Solicitor of Labor and two attorneys
charged with misconduct by the original presiding judge, in
which the Solicitor determined that there was insufficient
evidence of unprofessional conduct by Billie Pirner Garde
and Robert Guild to warrant imposition of sanctions.
BACK WAGES; CALCULATION OF SEASONAL WORK BASED ON QUARTERS;
USE OF ESTIMATE FOR INCREASED WORK DURING LAST YEAR
In Polgar v.
Florida Stage Lines, 94-STA-46 (Sec'y June 5, 1995), the Secretary indicated that it is
proper to take into account the seasonal nature of the
Respondent's business by computing back pay on a quarterly
basis. In addition, it is proper to adjust the back pay
award based on evidence of an increase in work at the time
of the discharge not attributable to the season.
BACK PAY; OWNER-OPERATOR NOT ENTITLED TO OPERATING EXPENSES
NOT ACTUALLY INCURRED
In Ass't Sec'y
& Lansdale and Lee v. Intermodal Cartage Co.,
Ltd., 94-STA-22 (ALJ Mar.
27, 1995), the ALJ found that an owner-operator, whose
compensation includes both salary and operating expenses, is
not entitled to recover operating expenses as part of a back
pay award. Citing by analogy Bing v. Roadway
Express, 485 F.2d 441, 453 (5th Cir. 1973) (Title VII
claim involving a truck driver).
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; WEIGHING
CONFLICTING MEDICAL EVIDENCE ON CAUSE; CONSIDERATION OF
COMPLAINANT'S BEHAVIOR IN DETERMINING SIZE OF AWARD
In Opthof v. Ashland Chemical Co., 94-CAA-
7 (ALJ May 8, 1995), the Complainant sought compensatory
damages for emotional distress, and there was conflicting
medical evidence concerning the relationship between the
Complainant's anxiety and emotional stress and his discharge
and harassment on the job. The ALJ cited longshore workers'
compensation caselaw to the effect that in weighing
conflicting medical evidence, the trier of fact may rely on
the common sense of the situation and may view the medical
evidence in the context of the relevant sequence of events.
In assessing the scope of the award, the ALJ took into
account that there was a mixed motive for the discharge, and
concluded that the award should be modest given chronic
friction between the Complainant and his supervisors for
which the Complainant was partly responsible and which pre-
existed the protected activity.
DUAL MOTIVE; CLEAR AND CONVINCING EVIDENCE STANDARD FOR POST
OCTOBER 23, 1994 ERA COMPLAINTS; EVIDENCE OF MILITARY-STYLE
DISCIPLINE FOR DISOBEYING ORDER
In Yule v. Burns
International Security Service, 93-ERA-12 (Sec'y May
24, 1995), the
Secretary observed that the Comprehensive National Energy
Policy Act of 1992 raised the burden of proof for the
respondent in a dual motive analysis in an ERA whistleblower
case from a preponderance of the evidence to clear and
convincing evidence. 42 U.S.C. § 5851(b)(3)(D). The
Secretary noted that while there is no precise definition of
"clear and convincing evidence," the courts
recognize that it is a higher burden than
"preponderance of the evidence" but less than
"beyond a reasonable doubt." E.g., Grogan v.
Garner, 498 U.S. 279, 282 (1991) and Pacific Mutual
Life Ins. Co. v. Haslip, 499 U.S. 1, 22 n.11 (1991).
In Yule, the Secretary disagreed with the
ALJ's assessment of the evidence, and found that there was
clear and convincing evidence that the Respondent had a
military-style standard of discipline for disobeying an
order that justified the Complainant's immediate discharge
for what the ALJ had found to be a minor act of
insubordinate conduct. The Secretary distinguished a prior
instance in which the Complainant was not discharged for
insubordination because it consisted of questioning her
supervisor's judgment rather than refusal of a direct order.
EMPLOYEE; JOB APPLICANT
In Stultz v.
Buckley Oil Co., 93-WPC-6 (Sec'y June 28, 1995), a management consultant who over a
period of several months was engaged in negotiations with
the Respondent concerning alternatives such as sale of the
company to the Complainant or the establishment of a
permanent position for the Complainant as general manager
was considered an employee for purposes of the environmental
whistleblower statutes even though the general manager
position was never established.
ERA COMPLAINT FILED MORE THAN 30 DAYS AFTER ADVERSE ACTION,
BUT ON OR AFTER OCTOBER 24, 1992 IS TIMELY
In Yule v. Burns
International Security
Service, 93-ERA-12 (Sec'y May 24, 1995), the
Secretary held that an ERA complaint filed more than 30 days
after the alleged adverse action, but on or after October
24, 1992, is timely under the 1992 amendments to the ERA.
Since by its own terms, the amendments apply to such a
complaint, application of the 180 time limit is not
retroactive.
FAILURE TO STATE CLAIM; ADEQUACY OF UNSWORN STATEMENT IN
RESPONSE TO MOTION
In Studer v.
Flowers Baking Company of Tennessee, Inc., 93-CAA-11
(Sec'y June 19, 1995), the Secretary
indicated that an unsworn statement of a fellow employee is
an adequate response to a motion to dismiss based on failure
to state a claim upon which relief may be granted under Fed.
R. Civ. P. 12(b)(6).
NRC NOTICE OF VIOLATION ISSUED AFTER ALJ'S DECISION IS NOT
CONSIDERED
In Norman v. Niagara Mohawk Power Corp.,
85-ERA-13 (Sec'y June 1, 1995), the Secretary found that a
NRC Notice of Violation reciting discriminatory treatment of
the Complainant was not a proper subject for his review
because the Notice was not in existence at the time of the
ALJ's decision.
OSHA INVESTIGATION; ONCE A HEARING IS REQUESTED, ADEQUACY OF
INVESTIGATION IS NOT AN ISSUE FOR CONSIDERATION
In White v. "Q" Trucking Co.,
93-STA-28 (Sec'y June 9, 1995), the Complainant requested
reconsideration, alleging, inter alia, that the
investigation by OSHA was inadequate. The Secretary denied
the motion, holding that the extent of the OSHA
investigation was not at issue -- once the Complainant
objected to the investigative findings, he was accorded the
opportunity for a de novo hearing and assumed the burden of
proving unlawful discrimination.
PRIVILEGE OF EMPLOYMENT; TRAINING AND EDUCATION
Training and educational programs that advance an
employee in his or her career or enable him or her to
perform work more efficiently are a privilege of employment.
PROTECTED ACTIVITY; BYPASSING THE CHAIN OF COMMAND TO GO
DIRECTLY TO EPA
In Studer v.
Flowers Baking Company of Tennessee, Inc., 93-CAA-11
(Sec'y June 19, 1995), the Secretary
held that an employee who bypasses the company's chain of
command to speak directly with the EPA about possible
violations of environmental laws may be protected under the
CAA. The Secretary had earlier made an analogous ruling in
regard to the NRC. See Saporito v. Florida Power &
Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order
denying motion to reconsider).
PROTECTED ACTIVITY; LACK OF FREON RECOVERY SYSTEM
It is protected activity under the CAA to complain to
EPA about the lack of a freon recovery system when
refrigeration equipment is repaired. Studer v.
Flowers Baking Company of Tennessee, Inc.,
93-CAA-11 (Sec'y June 19, 1995).
PROTECTED ACTIVITY UNDER ERA MUST BE RELATED TO NUCLEAR OR
RADIATION SAFETY
In
Decresci v. Lukens Steel Co., 87-ERA-13
(Sec'y Dec. 16, 1993), the Secretary held that a safety
complaint not related to nuclear or radiation safety is not
protected under ERA merely because the Respondent was
licensed by the NRC.
[Note: This is a 1993 case, but it was recently
discovered that it was missing from the OALJ Library and the
Whistleblower CD-ROM.]
SETTLEMENT; SUBMITTER'S CERTIFICATION OF FOIA EXEMPTION FOUR
TO INVOKE REQUIREMENT OF PREDISCLOSURE NOTIFICATION
In Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (Sec'y June 19, 1995), the
Secretary accepted the notarized signature of a corporate
officer claiming information contained in its settlement
agreement with the Complaint qualifies for the FOIA
exemption for "trade secrets and commercial or
financial information of a privileged or confidential
nature," 5 U.S.C. § 552(b)(4), as meeting the
regulatory requirement under 29 C.F.R. § 70.26 that the
predisclosure notification request shall be supported by a
statement or certification by an officer or authorized
representative of the submitter that the identified
information in question is, in fact, confidential commercial
or financial information and has not been disclosed to the
public.
SETTLEMENT; NO BRIGHT LINE RULE OF NONEXEMPTION
In Stephenson v. National Aeronautics & Space
Administration, 94-TSC-5 (Sec'y June 19, 1995), the
Secretary rejected the Wage and Hour Administrator's
proposal that the Secretary establish a "bright
line" rule that settlement agreements in whistleblower
cases are never subject to exemption under the FOIA
and that all terms of all settlement agreements must
be disclosed.
SETTLEMENT IN WHICH RESPONDENT DOES NOT ADMIT VIOLATION DOES
NOT END INQUIRY
In McClure v.
Interstate Facilities, Inc.,
92-WPC-2 (Sec'y June 19, 1995), the Secretary indicated that
a Wage and Hour Division Notice of Determination finding a
violation, despite a settlement in which Respondent did not
admit violation, has no legal effect once the Respondent
requests a hearing seeking to have the Notice vacated.
Thus, once the settlement is approved as fair, adequate and
reasonable, it is not necessary to vacate the Wage and Hour
Notice. Further, the Secretary rejected the Respondent's
contention that the Complainant's consent to the settlement
agreement ended all allegations of discrimination; the
Secretary noted that an environmental whistleblower
proceeding is not an ordinary lawsuit where a plaintiff's
consent to settle a complaint ends the inquiry.
STIPULATIONS; ENFORCED UNLESS CONTRARY TO PUBLIC POLICY
The parties' stipulations in ERA whistleblower
complaints will be enforced unless contrary to public
policy. Tritt v.
Fluor Constructors, Inc., 88-ERA-29 (Sec'y May 31,
1995).