Office of Administrative Law Judges
United States Department of Labor
August 7, 1995
This newsletter covers the materials that became available during
the period from June 30 to August 4, 1995.
AGENCY HEAD AS WITNESS; SANCTIONS FOR NONAPPEARANCE
In Douglas v. Tennessee Valley Authority,
94-CAA-9 (ALJ June 30,
1995), the Chairman of the TVA refused to appear as witness
despite the ALJ's order, and
Complainant moved for sanctions. The ALJ, noting that his
order included a finding that the
Chairman's testimony was relevant and necessary, imposed
sanctions -- specifically, a finding
that one of Complainant's witnesses was credible, and a
preclusion of the Respondent from
litigating the credibility of the witness.
BACK PAY; TERMINATION UPON UNCONDITIONAL OFFER OF
REINSTATEMENT; TOLLING
IF OFFER IS INVALID
In Ass't Sec'y
& Lansdale v. Intermodal Cartage Co., Ltd., 94-
STA-22 (Sec'y July 26, 1995), the Complainant, an
owner-operator, was offered reinstatement
on July 15, 1994. Because he had sold his trucks because of
financial problems related to his
discharge, however, he was unable to resume employment until
August 24, 1995 when he
succeeded in replacing his truck. The Secretary held that,
while the back pay period usually is
tolled upon an unconditional offer of reinstatement, the
period is not tolled where the offer is
invalid, such as where immediate resumption of employment is
not feasible.
COMPENSATORY DAMAGES; RECOVERY FOR FORCED SALE OF TRUCK; NEED
FOR CREDIBLE BASIS NEED TO ESTABLISH ACTUAL LOSS
In Ass't Sec'y
& Lansdale v. Intermodal Cartage Co., Ltd., 94-
STA-22 (Sec'y July 26, 1995), the Secretary recognized that
compensatory damages may be recovered by a complainant for losses
incurred by the sale by an owner-operator's truck
occasioned by his or her financial situation resulting from
the Respondent's retaliatory acts.
Generally, a forced sale is unlikely to result in a sale for
market value, and there is a
presumptive loss. Further, the Respondent generally has
uncertainty in the amount of
damages resolved against it. Where, however, the record
fails to provide a credible basis for
estimating the value of an actual loss, such an award will
not be made.
DEPOSITION TESTIMONY DISFAVORED
In Carter v.
Electrical District No. 2 of Pinal County, 92-TSC-11
(Sec'y July 26, 1995), the testimony of the Respondent's final
two witnesses was presented by deposition. The Secretary, in a
footnote, observed that "[o]ne of the purposes of conducting
a hearing before an ALJ is so that the ALJ can hear all of the
testimony and assess the credibility of the witnesses. Having
the two main witnesses for the Respondent testify only through
deposition defeats this purpose and should therefore be
discouraged in all but extraordinary situations."
DUAL MOTIVE; RESPONDENT MUST ESTABLISH BOTH THAT IT HAD A
LEGITIMATE REASON FOR THE ADVERSE ACTION AND THAT IT WOULD HAVE
TAKEN THE ACTION FOR THAT REASON ALONE
The existence of a legitimate reason for the taking of
adverse employment action against a complainant does not, by
itself, carry a respondent's burden in a dual motive case.
Rather, the record must establish that the respondent would have
taken the action for the legitimate reason alone. SeeMartin v. The Department of
the Army, 93-SDW-1 (Sec'y July 13, 1995).
HEARSAY; INADMISSIBLE TO PROVE CONDITION OF TRUCK BUT MAY BE
USED TO
PROVE COMPLAINANT'S PROTECTED ACTIVITY OR GOOD FAITH AND
REASONABLE BASIS
FOR ACTION
In Ass't Sec'y & Mulanax & Andersen v. Red
Label
Express, 95-STA-14 and 15 (ALJ July 7, 1995), the
Respondent proffered a hearsay
objection to the admission of out-of-court statements of
mechanics and policy officers that
concerned the mechanical condition of Respondent's trucks.
The ALJ held:
Under decisions and
regulations
promulgated by the
Secretary of Labor, out-of-court statements are generally not
admissible in
proceedings under the STAA to prove
the truth of the matters asserted in such statements
unless the statements fall within
one or more of the specific exceptions set forth at 29
C.F.R. § 18.803-804.
SeeHadley v. Southeast Coop. Service
Co., 86-STA-24 (June 28,
1991); 29 C.F.R. §1978.106; 29 C.F.R.
§18.101. Although these
exceptions are more extensive than the various
exceptions to the hearsay rule set forth
in the Federal Rules of Evidence and common law
evidence treatises, they are not so
extensive that they would ordinarily permit
out-of-court statements of mechanics or
police officers to be admitted for the purpose of
proving that a particular vehicle was
unsafe to operate. Hence, such statements cannot be
regarded as probative evidence
concerning the mechanical condition of the various
trucks driven by the Complainants.
However, it is also important to recognize that such
statements can be admitted into
evidence for other purposes, such as showing that a
Complainant engaged in a
protected activity or that a Complainant had a
reasonable and good faith basis for a
particular action. Thus, to the extent that such
hearsay statements have been
admitted into evidence in this proceeding, they have
been admitted solely for such
purposes and have not been treated as probative in any
other respect. . . .
Slip op. at 3-4 n. 4.
[Editor's note: The general rules of
practice and procedure at 29 C.F.R.
Part 18 apply to STAA whistleblower complaints. 29 C.F.R.
§ 1978.106(a). The nuclear
and environmental whistleblower complaints adjudicated under
29 C.F.R. Part 24, however, do
not incorporate the rules of evidence in Part 18, although
"rules or principles designed to
assure production of the most probative evidence available
shall be applied." 29 C.F.R.
§ 18.5(e).]
INDIVIDUAL LIABILITY FOR NONEMPLOYERS
Individuals who are not employers are not subject to
liability under the employee
protection provisions of the TSCA and the CAA. Thus, in
Stephenson v. National
Aeronautics & Space Administration, 94-TSC-5
(Sec'y July 1, 1995), four
management employees and a Wage & Hour investigator were
properly dismissed as
Respondents.
PROTECTED ACTIVITY; CONTACT WITH PRIVATE PERSON
Providing information to a private person for
transmission to responsible government
agencies, or for use in environmental lawsuits against one's
employer, is protected activity
under the CAA, SWDA, TSCA, and FWPCA. Scott v.
Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July
25, 1995).
PROTECTED ACTIVITY; RELEVANCE OF COMPLAINANT'S MOTIVES
If a complainant had a reasonable belief that the
Respondent was in violation of an
environmental act, that he or she may have other motives for
engaging in protected activity is
irrelevant. The Secretary concluded that if a complainant
is engaged in protected activity
which "also furthers an employee[']s own selfish
agenda, so be it." Carter
v. Electrical District No. 2 of Pinal County,
92-TSC-11 (Sec'y July 26, 1995).
PROTECTED ACTIVITY; MANNER OF COMPLAINT; USE OF INTEMPERATE
LANGUAGE
When a complainant uses intemperate language or engages
in impulsive behavior
associated with the exercise of whistleblower rights, there
should be a balancing between the
right of the employer to maintain shop discipline and the
"heavily protected" rights
of employees -- to fall outside statutory protection, an
employee's conduct actually must be
indefensible under the circumstances. While employees are
protected when presenting safety
related complaints, they do not have carte blanche to choose
the time, place and/or method of
making those complaints. An otherwise protected employee is
not automatically absolved from
abusing his or her status and overstepping the defensible
bounds of conduct, even when
provoked. Carter v.
Electrical District No. 2 of Pinal County, 92-TSC-11
(Sec'y July 26, 1995)
To the same effect: Martin v. The Department of
the Army, 93-SDW-1 (Sec'y July 13, 1995)
(Complainant's behavior not indefensible where his actions may
have disrupted a demonstration and an inspection briefly, but the
Complainant did not persist, and the events continued).
RESPONDENT'S KNOWLEDGE; SMALL SHOP DOCTRINE
In Ass't Sec'y & Mulanax & Andersen v. Red
Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the
ALJ noted that the fact that the
Respondent was a small, informally managed family enterprise
may be sufficient evidence by
itself to warrant a finding that the Complainant's protected
activities were made known to the
official who actually informed the complainant that he was
being fired. See D & D
Distribution Co. v. NLRB, 801 F.2d 636, 641 (discussing
the "small shop
doctrine"); Ertel v. Giroux Brothers Transportation,
Inc., 88-STA-24 (Sec'y Feb.
16, 1989).
SOVEREIGN IMMUNITY UNDER THE CAA, CWA, SWDA AND TSCA
With the exception of whistleblower complaints involving
lead-based paint, sovereign
immunity has not been waived for purposes of the TSCA
employee protection provision. Thus,
in Stephenson v. National Aeronautics & Space
Administration, 94-
TSC-5 (Sec'y July 1, 1995), NASA was properly dismissed as a
Respondent where the
complaint did not concern a lead-based paint hazard. A CAA
complaint against NASA,
however, was cognizable. See Jenkins v. U.S.
Environmental Protection Agency, 92-CAA-6 (Sec'y May 18,
1994).
The Secretary noted that the United States Supreme Court
had held in Department of
Energy v. Ohio, 112 S.Ct. 1627, 1633-1635 (1992), that
neither the Clean Water Act nor
the Solid Waste Disposal Act contains a clear enough waiver
of sovereign immunity to subject
the United States to civil penalties for past violations.
SURVEILLANCE OF EMPLOYEES NOT PER SE DISCRIMINATORY
In Scott v.
Alyeska Pipeline Service Co.,
92-TSC-2 (Sec'y July 25,
1995), the Secretary declined to establish a per se rule
that covert employer surveillance of
employees engaged in protected activities is
"inherently discriminatory" and proof in
and of itself of illegal motive. In Scott,
the Secretary found that the
Respondent had a legitimate business reason to investigate
leaks of its documents, and the
record did not show that it intended to use a surveillance
to intimidate its employees from
making safety or health complaints.
TOLLING BASED ON DATE COMPLAINANT LEARNED OF RETALIATORY
MOTIVE; MUST BE
EVIDENCE THAT RESPONDENT CONCEALED OR MISLEAD COMPLAINANT
In Hatcher v.
Complete Auto Transit,
94-STA-53 (Sec'y July 3, 1995),
the Complainant filed his STAA complaint 341 days after
termination of his employment and
463 days after engaging in allegedly protected activity.
The Complainant alleged that he did
not know that the protected activity was used as a basis for
the discharge until "much
later." The ALJ found the complaint timely because the
Respondent did not notify the
Complainant that the incident that Complainant alleged was
protected was used against the
Complainant to justify his discharge.
The Secretary reversed the ALJ's finding, finding no
basis for equitable tolling of the 180-
day filing period. The Secretary noted that there was no
requirement that an employer give
notice to the employee of each fact that might be considered
in rendering a discharge decision.
Although the regulations prohibit the employer from
concealing or misleading the employee
regarding the basis for the discharge decision, there was no
evidence in the record on which to
base a conclusion that the Respondent concealed or mislead
the Complainant in this regard.
UNDERLYING VIOLATION MUST INVOLVE COMMERCIAL MOTOR VEHICLE
SAFETY
In Foley v. J.C.
Maxxwell, Inc., 95-STA-11
(Sec'y July 3, 1995), the
Complainant alleged that he was fired because he filed a
complaint with OSHA concerning
exposure to asphalt fumes. The Secretary concluded that the
Complainant had not engaged in
protected activity under STAA, 49 U.S.C. § 31105(a)(1),
which involves commercial
motor vehicle safety, but alleged only a potential OSHA
violation.