Office of Administrative Law Judges
United States Department of Labor
September 8, 1995
This newsletter covers the materials that became available during
the period from August 5 to September 8, 1995.
ADVERSE EMPLOYMENT ACTION; VIOLATION OF SETTLEMENT AGREEMENT
Violation of a settlement agreement may under some
circumstances constitute a separate, independent violation
of the ERA. In Gillilan v. Tennessee Valley
Authority, 91-ERA-31 and 34 (Sec'y Aug. 28,
1995),
however, the Secretary found that the Complainant failed to
raise a prima facie case of retaliation where, inter
alia, there was no final settlement of the prior case
approved by the Secretary as required by the ERA, and there
was no allegation or indication that action complained about
-- reissuing a service review -- fell within the
"terms, conditions, or privileges" of the
Complainant's employment.
ATTORNEY FEES; REDUCTION WHERE COUNSEL PURSUED UNNECESSARY
AND IRRELEVANT MATTERS AND WAS ONLY PARTIALLY SUCCESSFUL
In Varnadore v. Martin Marietta Energy Systems,
Inc., 94-CAA-2 and 3 (ALJ June 23, 1995), the ALJ
recommended reduction of Complainant's counsel's fee
petition by 25% where the Complainant only prevailed on one
of five claims (resulting in expungement of a performance
appraisal), and where counsel spent many hours pursuing
unnecessary and irrelevant matters, and included much
irrelevant material in pleadings.
BACK PAY; MITIGATION OF DAMAGES; REASONABLE DILIGENCE
STANDARD
In determining the amount of back pay, the burden is on
the employer to prove that the complainant failed to
mitigate damages by the exercise of reasonable diligence in
seeking other suitable alternative employment. To carry
that burden, an employer must show both that there were
substantially equivalent positions available and that the
employee did not use reasonable care and diligence in
seeking such positions.
A determination regarding the issue of reasonable
diligence requires consideration of the particular
characteristics of the complaint at the pertinent time. A
complainant "is only required to make reasonable
efforts to mitigate damages and is not held to the highest
standards of diligence." Moyer v. Yellow Freight
System, Inc., 89-STA-7 slip op. at 13 (Sec'y
Aug.
21, 1995), quoting Rasimas, 714 F.2d at 624. The
complainant must be given the benefit of every doubt in
evaluation of his or her efforts to obtain alternative
employment. Moyer v. Yellow Freight System,
Inc., 89-STA-7 slip op. at 9, 12.
In Moyer, the Secretary Secretary found,
inter alia, that
Complainant's difficulties in finding alternative
employment were related to financial instability caused
by his wrongful termination;
the Complainant did not unreasonably leave jobs
where the working conditions were more difficult;
the Complainant was reasonably concerned that
prospective employers would be wary of employing him
based on the circumstances of his discharge by the
Respondent, his legal challenge to that discharge, and
the possibility of reinstatement by the Respondent;
the Complainant's preparations for and attendance
at depositions and hearings in this case played a
significant role in his interim employment
history.
BACK PAY; BENEFITS FROM OTHER SOURCES DO NOT DIMINISH THE
RESPONDENT'S LIABILITY
Benefits received from other sources during the period
following the complainant's wrongful discharge, as opposed
to earnings from alternative interim employment, may not
diminish an employer's liability for back pay. Moyer
v. Yellow Freight System, Inc., 89-STA-7 (Sec'y
Aug.
21, 1995) (benefits from a "welfare" program, a
"soldiers and sailors" fund, unemployment
compensation, pension fund, permanent workers' compensation
disability, and Social Security disability benefits).
BACK PAY; PERIODS OF UNAVAILABILITY ATTRIBUTABLE TO ILLEGAL
ACTS OF EMPLOYER
Although an employer is generally not liable for back
pay periods during which the wrongfully discharged employee
was disabled, a wrongfully discharged employee will not be
held accountable for periods of unavailability for work that
are due to the illegal action of the employer. Moyer
v. Yellow Freight System, Inc., 89-STA-7 (Sec'y
Aug.
21, 1995) (Complainant's need for hidradenitis surgery and
other disabling conditions were connected to his wrongful
discharge; Respondent's liability, however, was tolled for a
period during which the Complainant could not work because
he had broken a finger).
BURDEN OF PROOF AND PRODUCTION; 1992 ERA AMENDMENTS
In Dysert v.
Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995),
the Secretary held that the
amendments made by the Comprehensive Energy Policy Act of
1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123, to the
employee protection provision of the Energy Reorganization
Act of 1974, 42 U.S.C. § 5851, place the burden on the
complainant to "demonstrate" that protected
activity contributed to the employer's adverse action, not
to establish merely a prima facie showing of causation.
Further, this standard does not alter the degree of
persuasiveness by which a complainant must prove his or her
case.
DISMISSAL; FED. R. CIV. P. 12(G) AS BAR TO SUBSEQUENT RULE
12(B) MOTION
In Stephenson v.
National Aeronautics & Space
Administration, 94-TSC-5 (Sec'y Aug. 21, 1995),
the
ALJ recommended dismissal of the Complainant's complaint
under the employee protection provision of the Clean Air Act
based on the Respondent's motion for dismissal under Fed. R.
Civ. P. 12(b)(1). The Respondent's motion was based on an
argument that the Complainant was not an
"employee" of the Respondent within the meaning of
the CAA whistleblower provision. The ALJ found that the
case of Reid v. Methodist
Medical Center of Oak
Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), appeal
docketed, No. 95-3648 (6th Cir. June 1, 1995), was
dispositive. The Secretary noted that the Complainant had
failed to counter the Respondent's factually based motion
for summary disposition with affidavits of her own, which
virtually ensured a favorable decision for the Respondent on
the merits of the motion.
Nonetheless, the Secretary held that because the
Respondent had previously moved for dismissal under Rule
12(b)(6) without including the Rule 12(b)(1) jurisdictional
defense that the Complainant was not an employee within the
meaning of the CAA, Rule 12(g) barred the Respondent
advancing another 12(b) motion. The Secretary noted that
the Respondent could argue for dismissal on this ground
after a hearing on the complaint, but that it could not do
so under Rule 12. Thus, the Secretary remanded the case for
a hearing.
EMPLOYEE; CONTRACT WORKER PROTECTED REGARDLESS OF
CATEGORIZATION AS EMPLOYEE OF CONTRACT FIRM OR FIRM AT WHICH HE
PERFORMED THE CONTRACT WORK
The employee protection provision of the ERA protected a
contract worker regardless of whether he was an employee of
the contract firm or the power corporation at which he
performed the contract work. Dysert v. Florida Power
Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), citing
Hill v. TVA, 87-ERA-23 and 24 (Sec'y May 24,
1989) (Complainant worked under the direct supervision of
the power corporation's managers).
PRETEXT; SHIFTING EXPLANATIONS AS EVIDENCE OF
An employer's shifting explanations may be considered
evidence of pretext. Hobby v. Georgia Power
Co., 90-ERA-30 (Sec'y Aug. 4, 1995), citing
Bechtel Const. Co. v. Secretary of Labor, 50 F.3d
926, 935 (11th Cir. 1995).
PRETEXT; LACK OF VIOLATION OF ENVIRONMENTAL STATUTE RELEVANT
TO MOTIVE
PROTECTED ACTIVITY; CONTACT WITH OSHA PROTECTED UNDER CERCLA
EVEN IF IT CONCERNED SOLELY OCCUPATIONAL SAFETY AND HEALTH
The environmental acts generally do not protect
complaints restricted solely to occupational safety and
health, unless the complaints also encompass public safety
and health or the environment. A provision in CERCLA,
however, protects an employee who "has provided
information to a State or to the Federal Government. . . .
" 42 U.S.C. § 9610(a). Thus, the Complainant's
contact with OSHA was protected activity even if it
concerned solely occupational safety and health. Post v. Hensel Phelps
Construction Co., 94-CAA-13 (Sec'y Aug. 9, 1995).
PROTECTED ACTIVITY; COMPLAINANT ONLY NEEDS REASONABLE BELIEF
THAT ENVIRONMENTAL LAW IS BEING VIOLATED; NONETHELESS, PROOF OF
NO VIOLATION MAY BE RELEVANT TO MOTIVE
Even if the respondent's acts were actually legal, a
complainant only needs a reasonable belief that his or her
employer was violating the law to present a cognizable
whistleblower complainant. Nonetheless, proof that the
employer was not violating the law does tend to demonstrate
that the employer did not seize upon poor performance as a
pretext for retaliation. Rivers v. Midas Muffler
Center, 94-CAA-5 (Sec'y Aug. 4, 1995)
See alsoHobby v. Georgia Power
Co., 90-ERA-30 (Sec'y Aug. 4, 1995)
(reasonableness
belief sufficient to prevent cognizable complaint).
PROTECTED ACTIVITY; EMPLOYEE WHO REPORTS SAFETY VIOLATIONS AS
A ROUTINE PART OF HIS OR HER JOB
The fact that an employee reports safety violations in
the course of his or her regular duties does not remove that
activity from categorization as protected activity.
Jopson v. Omega
Nuclear Diagnostics, 93-ERA-54
(Sec'y Aug. 21, 1995) (fact that NRC investigation during
which violation was reported was merely routine did not
alter protected nature of the activity).
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON BREAK OF
SLEEPING PATTERN; PRESUMPTION THAT REGULATION ESTABLISHES
BASELINE OF SAFE OPERATION
In Brandt v. United Parcel Service,
95-STA-26 (ALJ June 29, 1995), the Complainant refused a
driving assignment on the ground that he would be too
fatigued to drive safely as a result of his having to change
his sleeping pattern, although he had more than 24 hours
notice of the assignment, and he admitted that taking the
assignment would not have violated the hours of service
rules set out in Part 395 of 49 C.F.R. The ALJ held that
the hours of service rules establish a presumption of safe
operation that can be rebutted by evidence showing
circumstances peculiar to a particular situation. Based on
the scant evidence before him, the ALJ concluded that the
Complainant had not shown that his refusal to take the
assignment was protected activity.
The ALJ went on to find that, even assuming the
Complainant engaged in protected activity, the Respondent
had a valid business reason for terminating the Complainant
-- if the Complainant could not change his sleeping pattern,
he was not suitable for a job that required flexible
drivers. The ALJ concluded that "[i]f it is true in
general that disrupting a driver's sleep pattern is likely
to result in dangerous driving, the hours of service rules
should reflect this general truth."
SETTLEMENT; ALJ'S AUTHORITY TO ISSUE FINAL DECISION WHEN CASE
WAS SETTLED WHILE ON REMAND FROM SECRETARY
In Earwood v. Dart Container Corp. of
Georgia, 93-STA-16 (ALJ Apr. 26, 1995), the ALJ
approved a settlement concerning costs and expenses.
Although the case was on remand from the Secretary, the ALJ
concluded that he had the authority to render a final
decision in the matter. See 29 C.F.R. §
1978.111(d)(2).
In a similar situation in Nolan v. AC
Express, 92-STA-37 (ALJ Apr. 24, 1995), however,
the
ALJ concluded that given the prior litigation in the matter,
she would forward the matter to the Secretary for issuance
of a final decision on the settlement. The ALJ thoroughly
reviewed the settlement in a recommended decision. The
Secretary thereafter issued an order approving the
settlement. Nolan v. AC Express, 92-STA-37
(Sec'y June 28, 1995). The Secretary stated that either the
ALJ or the Secretary has the authority to approve the
settlement of STAA complaint, but then rather than adopting
the ALJ's recommended order, reviewed the settlement de
novo.
SETTLEMENT; DOL JURISDICTION TO ENFORCE
In Babel v. Federal Way Water and Sewer
District, 95-CAA-23 (pending), the Complainant seeks
enforcement of a settlement earlier approved by the
Secretary of Labor. The Office of the Solicitor has
declined jurisdiction to enforce the settlement based on
Kokkonen v. Guardian Life Ins. Co. of America, 114 S.
Ct. 1673 (1994).
SETTLEMENT; REVIEW BY SECRETARY REQUIRED UNDER SWDA
The Secretary found in Fletcher v. Travi
Construction Corp., 95-SWD-2 (Sec'y Aug. 21,
1995),
that a settlement agreement must be reviewed by him to
determine whether the terms are a fair, adequate and
reasonable settlement of the complaint.
In the April newsletter, it
was suggested, contrary to the holding of Fletcher,
that Secretarial review of the settlement of a SWDA
complaint probably was not required based on the rationale
of the ALJ in Biddle
v. United States Dept. of the Army, 93-WPC-15 (ALJ May 6, 1994), adopted (Sec'y Mar. 29, 1995).
The Fletcher decision does
not address the Biddle rationale.
SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA
In Teles v. U.S.
Dept. of Energy, 94-ERA-22 (Sec'y Aug. 7, 1995),
adopting (ALJ Feb. 28,
1995), the Secretary examined the legislative history of the
1992 amendments to the ERA, and held that sovereign immunity
has not been waived under ERA section 211, 42 U.S.C. §
5851.
See alsoWilliams v. Y-12 Nuclear Weapons
Plant, 95-CAA-10 (ALJ Aug. 2, 1995) (in regard to an
ERA complaint, the ALJ found no waiver of sovereign
immunity; in regard to a TSCA complaint, the ALJ found no
waiver of sovereign immunity except for complaints involving
lead-based paint).
TIMELINESS OF COMPLAINT; AFFIRMATIVE DEFENSE THAT IS WAIVED
IF RAISED TOO LATE
The time frame for filing a complaint under the ERA is
not jurisdictional, but is a statute of limitations, which
is generally considered an affirmative defense. Where the
ALJ ordered the parties to submit a statement of contentions
prior to the hearing, and held a pre-hearing conference, but
the Respondent first raised the issue of the timeliness of
the complaint in its post-hearing brief, the ALJ properly
found that the Respondent waived timeliness of the complaint
as an issue. See 29 C.F.R. § 18.6(d)(2)(v).
Hobby v. Georgia
Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995).
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ACTUAL OR
CONSTRUCTIVE NOTICE OF FILING REQUIREMENT
In Roberts v.
Tennessee Valley Authority,
94-ERA-15 (Sec'y Aug. 18, 1995), the Complainant
maintained that he lacked actual or constructive
notice of the filing requirement, which is part of the
Rose v. DoleRose v. Dole, 945 F.2d 1331 (6th
Cir. 1991) test. The Secretary found that the Complainant
could not rely on lack of constructive notice based on his
attorney's knowledge where he did not engage an attorney
until after the deadline had passed. Further, the decision
indicates that Complainant's assertions of lack of notice
were not convincing because the Complainant had worked in
the nuclear industry for about 25 years and therefore knew
or should have known about the filing requirements. The
Secretary noted that Rose v. Dole has a fifth factor-
-the reasonableness of the complainant's remaining ignorant
of his rights--and that a complainant with such experience
in the nuclear industry was not reasonably ignorant of his
rights under the ERA.
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; PREVENTION OF
ASSERTION OF RIGHTS; ATTORNEY DISABILITY
In Gillilan v.
Tennessee Valley Authority,
91-ERA-31 and 34 (Sec'y Aug. 28, 1995), the Secretary found
that the Complainant's assertion that his attorney's mental
incapacity was responsible for a missed deadline was
sufficient to withstand a motion for summary decision based
on lack of timeliness. SeeCantrell v. Knoxville
Community Dev. Corp., Nos. 94-5033 and 94-5379, 1995
U.S. App. LEXIS 17458, *3 (6th Cir. July 19, 1995) (if a
plaintiff pursued his Title VII claim diligently, yet was
abandoned by his attorney due to his attorney's mental
illness, equitable tolling of the limitations period may be
appropriate).
TIMELINESS OF REQUEST FOR HEARING; FAILURE TO FILE REQUEST
WITH OALJ DESPITE SERVICE ON ALL OTHER PARTIES
Where the Respondent served all parties with its request
for a hearing, but failed to file that request with the
Office of Administrative Law Judges, the ALJ found that the
mistake was mere clerical error that would not result in
dismissal where the only effect of the mistake was delay in
the initial processing of the complaint by the OALJ.
Shelton v. Oak Ridge National Laboratory, 95-
CAA-19 (ALJ Aug. 2, 1995) (pre-hearing order).
VOLUNTARY DISMISSAL; RESPONDENT'S REQUEST FOR HEARING IS
FUNCTIONAL EQUIVALENT OF ANSWER
In Young v. CBI Services, Inc., 88-ERA-19
(Sec'y Aug. 4, 1994), the Secretary held that a respondent's
request for a hearing following the adverse preliminary
determination of the Wage and Hour Administrator constitutes
an answer for purposes of Fed. R. Civ. P. 41(a)(2).
WAGE AND HOUR DETERMINATION; EFFECT OF AFTER REQUEST FOR
HEARING
After a hearing is requested on an ERA whistleblower
complaint, the case is received de novo. The Wage and Hour
determination is of no force or effect, and is not legally
prejudicial. Hobby
v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995)
(rejecting the Respondent's contention that it was prejudiced by
irregularities in the Wage and Hour investigation).