Office of Administrative Law Judges
United States Department of Labor
February 6, 1996
This newsletter covers the materials that became available during
the period from January 17 through February 6, 1996.
ADVERSE EMPLOYMENT ACTION; DISCRETIONARY ORDER TO SUBMIT TO
PSYCHOLOGICAL EVALUATION [N/E Digest XIII B 18]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Secretary noted
that federal courts have treated discretionary orders to submit
to psychological evaluations as adverse employment actions. In
Diaz-Robainas the Secretary found that NRC
regulations requiring a licensee to provide reasonable assurance
that its employees are not mentally or physically impaired in
such a way as to adversely affect their ability to safely and
competently perform their duties, see 10 C.F.R.
§§ 26.10(a), 26.20(a), do not prevent a power company
from abusing a company policy concerning psychological testing,
nor does it preclude a Complainant from alleging that a testing
order was retaliatory under the ERA. The Secretary also found
that the fact that the Complainant could have appealed the
results of the evaluation internally did not preclude the ERA
complaint.
The Secretary emphasized that a refusal to submit to a
psychological evaluation is distinct from instances in which the
employee refuses to work. The Secretary's decision indicates
that where the complainant is able to establish that the initial
order to submit to psychological evaluation was based on
retaliatory discrimination under the ERA, then a subsequent
discharge for the refusal to submit to the evaluation is also a
violation of the ERA.
The Secretary noted in this regard that he is not persuaded
by certain caselaw dealing with employees' contractual rights
under collective bargaining agreements.
AMICUS CURIAE; CONSENSUS OF PARTIES THAT BRIEF SHOULD NOT BE
CONSIDERED [N/E Digest IX B 3]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), Florida Energy
Consultants, Inc., filed an amicus curiae brief before the
Secretary. Both Complainant and Respondent requested that the
Secretary not consider the amicus curiae brief, and in view of
this consensus, the Secretary did not consider it.
ATTORNEY'S FEES; LARGER AWARD TO LEAD COUNSEL [N/E Digest XVI E 3 d 6]
A larger award to the lead counsel is appropriate.
Zinn v. University of
Missouri, 93-ERA-34 and 36
(Sec'y Jan. 18, 1996).
ATTORNEY'S FEES; RATES [N/E Digest XVI E 3 c]
In a case arising in Columbia, Missouri, an attorney fee
hourly rate of $150.00 per hour was approved for the lead
counsel, while $85.00 per hour was approved for counsel for a
second Complainant. Zinn
v. University of Missouri, 93-ERA-34 and 36 (Sec'y
Jan. 18, 1996).
ATTORNEY FEES; WORK FOLLOWING ALJ HEARING; DIRECTION OF
PETITION [N/E Digest XVI E 4 b]
In Gaballa v. The
Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996),
the Secretary permitted the Complainant's attorney to submit a
supplemental itemized petition for attorney's fees and costs not
covered by an earlier interim
order.
Editor's note: Implicitly, this petition would be
directed to the Secretary.
BLACKLISTING; POOR REFERENCE IS ACTIONABLE REGARDLESS OF
IDENTITY OF RECIPIENT OF INFORMATION [N/E Digest XIII B 1]
It is unlawful discrimination when providing information
concerning a complainant's employment to an outside party to
refer to the complainant's complaint about discrimination.
Discriminatory referencing violates the ERA regardless of the
recipient of the information. See Earwood v. Dart Container
Corp., 93-STA-16 (Sec'y Dec. 7, 1994). Gaballa v. The
Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996)
(Complainant had hired a reference checking company).
BURDENS OF PROOF AND PRODUCTION; ERA AMENDMENTS [N/E Digest XI]
In Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y
Feb. 15, 1995), appeal filed, No. 95-1729 (8th Cir. Mar.
27, 1995), the Secretary provided a restatement and clarification
of the burdens of proof and production in whistleblower cases.
In Zinn v. University of
Missouri, 93-ERA-34 and 36
(Sec'y Jan. 18, 1996), the Secretary provides a recent, and
thorough restatement of those burdens, which varies in some
respects form the Carroll restatement. The following is
an excerpt of the Secretary's restatement:
Under the burdens of proof and production in
"whistleblower" proceedings, a complainant who
seeks to rely on circumstantial evidence of intentional
discriminatory conduct must first make a prima facie
case of retaliatory action by the respondent, by
establishing that he engaged in protected activity, that he
was subjected to adverse action, and that the respondent was
aware of the protected activity when it took the adverse
action. ... Additionally, a complainant must present
evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse
action. ... If a complainant succeeds in establishing the
foregoing, the respondent must produce evidence of a
legitimate, nondiscriminatory reason for the adverse action.
...
The complainant bears the ultimate burden of persuading
that the respondent's proffered reasons are not the true
basis for the adverse action, but are a pretext for
discrimination. ... The complainant bears the burden of
establishing by a preponderance of the evidence that the
adverse action was in retaliation for protected activity. .
. . Pursuant to Section 211(b)(3) of the ERA, however, if it
has been established that the protected activity contributed
to the adverse action, the employer must demonstrate by
"clear and convincing evidence" that it would have
taken the adverse action in the absence of the protected
activity. . . .
Editor's note: Two significant additions since the
Carroll restatement are (1) reference to the
"reliance on circumstantial evidence" limitation on the
use of a prima facie case analysis, and (2) addition of
special burdens in ERA cases based on the 1992 amendments.
DAMAGES; MENTAL AND EMOTIONAL DISTRESS; COMPENSATION
STANDARDS [N/E Digest XVI D 4 a]
In Gaballa v. The
Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996),
the Secretary ordered payment of an
award of $35,000 for mental and emotional suffering. The ALJ had
recommended an award of $75,000. In arriving at the $35,000
figure, the Secretary took into account prior awards in
comparable cases ($10,000 in three cases and $50,000 in another),
the fact that the Complainant had already received compensation
through an earlier settlement for part of the mental and
emotional suffering (which the Secretary found the ALJ had not
considered), and deference to the ALJ who heard and evaluated the
witnesses' testimony.
DIRECT EVIDENCE OF DISCRIMINATION;
DARTEY NOT
APPLICABLE [N/E Digest X D]
Where there is direct evidence of discrimination, it is not
necessary to engage in the familiar Dartey v. Zack Co.
allocation of burdens of proof and burdens of production
applicable in cases limited to circumstantial evidence. It is
prohibited retaliation where the evidence of discrimination and
the discriminatory act are the same, such as discriminatory
statements in an employment reference check. Gaballa v.
The Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18,
1996).
In Zinn v. University
of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), the Secretary recited the familiar
allocation of burdens of proof and production, but interestingly
changed the introductory language to state that "a
complainant who seeks to rely on circumstantial evidence of
intentional discriminatory conduct must first make a
prima facie case of retaliatory action by the respondent .
. ." Slip op. at 6 (bold-italics added).
DIRECT EVIDENCE OF RETALIATORY MOTIVE [STAA Digest IV D 1]
Where the Complainant established that he had engaged in
protected activity - objection to assignment to a certain truck -
and the Respondent maintained that it terminated the
Complainant's employment for insubordination, the Respondent's
reason was an effective admission of termination, at least in
part, for protected activity.
The Secretary noted that "[w]here there is direct
evidence that the adverse action is motivated, at least in part,
by the protected activity, the respondent may avoid liability
only by establishing that it would have taken the adverse action
in the absence of the protected activity." Caimano v.
Brink's, Incorporated, 95-STA-4, slip op. at 23-24
(Sec'y
Jan. 26, 1996) (citation omitted).
DIRECT EVIDENCE OF RETALIATORY DISCRIMINATION; EVIDENCE OF
DISCRIMINATION MUST BE "PATENT" [N/E Digest X D]
Holding that a supervisor's statement that "I don't want
any contractors working on problems which they discovered"
was not direct evidence of retaliatory discrimination against a
"staff augmentee" employee when he was not rehired, the
court in Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), noted that "[t]he distinction
between direct and circumstantial evidence in employment
discrimination cases is not self-evident."
Bartlik, 1996 U.S. App. LEXIS 294 at *7 n.5
(citations omitted). The court observed that "[i]n the
context of discrimination cases in this circuit . . . we have
held that direct evidence is evidence which, if believed,
'requires the conclusion that unlawful discrimination was at
least a motivating factor.' See Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995) (citing
Terbovitz v. Fiscal Court of Adair Cty., 825 F.2d 111, 115
(6th Cir. 1987)). With direct evidence, the existence of unlawful
discrimination is 'patent.' Id."
Bartlik, 1996 U.S. App. LEXIS 294 at *7 n.5.
Under the dual, or mixed, motive doctrine, when the
evidence establishes that discriminatory intent played a
role in an adverse action, the employer may avoid liability
only by demonstrating that the action would have been taken
on the basis of a legitimate motive alone. ... Under the
dual motive analysis, the employer "bears the risk that
the 'influence of legal and illegal motives cannot be
separated. . . .'" Mackowiak, 735 F.2d at 1164
(quoting NLRB v. Transportation Management Corp., 462
U.S. 393, 403 (1983)).... Furthermore, ... the 1992
Amendments to the ERA provide that an employer can escape
liability under the dual or mixed motive analysis only by
presenting clear and convincing evidence that the adverse
action would have been taken in the absence of the protected
activity. Section 211(b)(3)(D) of the ERA, codified at 42
U.S.C. § 5851(b)(3)(D)....
EMPLOYEE; COVERAGE OF MESSENGER ON ARMORED TRUCK [STAA Digest VII A 2 c]
In Caimano v. Brink's,
Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the Secretary held that a messenger whose
duties directly affected commercial motor vehicle safety was a
covered employee under the whistleblower provision of the STAA.
The Secretary found the messenger's duties to be analogous to
that of a freight handler, which is a position specifically
included within the statutory definition. The Secretary also
noted that on delivery runs, it is the messenger rather than the
driver who is in charge.
EVIDENCE; LESSENED SIGNIFICANCE OF TECHNICAL RULES ON
ADMISSIBILITY IN NON-JURY PROCEEDINGS [STAA Digest III J]
In Caimano v. Brink's,
Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the Secretary held that the ALJ properly
followed a general rule that evidence should not be ruled
inadmissible on technical grounds in non-jury proceedings.
Rather than refuse admission of such evidence, the ALJ should
consider factors relevant to the reliability and probative value
of contested evidence in determining the weight to be accorded
such evidence." Slip op. at 4 n.3 (citations omitted).
EVIDENCE; LESSENED SIGNIFICANCE OF TECHNICAL RULES ON
ADMISSIBILITY IN NON-JURY PROCEEDINGS [N/E Digest VII D 2]
In Zinn v. University
of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996),
the Secretary noted that the general rule is that an ALJ should
admit evidence for whatever probative value it might have, see
Fugate v. Tennessee Valley Authority, 93-ERA-9, slip op. at
3-4 (Sec'y Sept. 6, 1995).
EVIDENCE; MOTIVE; SHOWING THAT OTHERS WHO OPPOSED
RESPONDENT'S ADMINISTRATIVE POLICIES SUFFERED NO ADVERSE
CONSEQUENCES [N/E Digest XI E 11]
In Zinn v. University
of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), the Secretary noted the
Respondent's evidence that other staff had opposed administrative
policies and had taken leading roles in doing so, but had
suffered no adverse consequences as a result. The Secretary,
however, found that this evidence did not undermine the otherwise
well-supported conclusion that the Complainant was demoted, at
least in part, based on a retaliatory motive. Slip op. at 26-27.
EVIDENCE; MOTIVE; CLOSE WORKING RELATIONSHIP BETWEEN
SUBORDINATES WHO EXHIBITED ANIMUS AND SUPERVISOR WHO MADE ADVERSE
EMPLOYMENT DECISION [N/E Digest XI E 3]
The ALJ did not err in considering evidence of hostility by
several subordinates regarding the Complainant, even though they
did not have the responsibility for consideration of the
Complainant's promotion, where there was a close working
relationship between those subordinates and the decisionmaker,
and there was evidence of a pattern of hostility against the
Complainant. Zinn v.
University of Missouri, 93-ERA-34 and 36, slip op. at
12 (Sec'y Jan. 18, 1996).
EVIDENCE; MOTIVE; RELEVANCE OF EVIDENCE OF TENSION BETWEEN
SAFETY AND PROFITS [STAA Digest III J]
In Caimano v. Brink's,
Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), the ALJ questioned various witnesses about
the tension between "safety and profits," and noted the
existence of the tension in the recommended decision. The
Secretary found that the ALJ missed the significance of this
evidence in regard to the analysis of retaliatory animus toward
the Complainant. The Secretary indicated that the existence of
the tension was indicative of hostility resulting from the
Complainant's persistent safety complaints.
EVIDENCE; RELEVANCE OF EVIDENCE OF IMPROVEMENTS OCCURRING
AFTER ADVERSE EMPLOYMENT ACTION [STAA Digest III J]
In Caimano v. Brink's,
Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), it was error for the ALJ to rely on
evidence of improvements in truck maintenance that occurred after
the Complainant's employment had been terminated in determining
whether there had been a violation under the STAA.
EVIDENCE; SCANDALOUS OR IMPERTINENT MATERIAL STRICKEN FROM
RECORD [N/E Digest VII D 2 and IX B 1]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Respondent
moved to strike a letter written by the Complainant to the
Secretary in which the Complainant asserted that the Respondent
falsified the record. The Respondent complained that this
assertion was scandalous or impertinent. The Secretary struck
the portion of the letter in which the challenged assertion was
made.
FECA; RELATIONSHIP TO WHISTLEBLOWER PROVISION OF THE ERA [N/E Digest XX B 6]
In Karnes v. Runyon, 1995 U.S. Dist. LEXIS
19863 (S.D.Ohio 1995), a case involving Title VII and
Rehabilitation Act of 1973 claims, the court followed the
decision of the Sixth Circuit in DeFord v. Secretary of
Labor, 700 F.2d 281 (6th Cir. 1983) that FECA does not
preclude recovery of compensatory damages under 42 U.S.C. §
5851. The court found that FECA does not preclude recovery for
injuries caused by illegal discrimination under Title VII or the
Rehabilitation Act.
HOSTILE WORK ENVIRONMENT; SECRETARY'S ADAPTATION OF THIRD
CIRCUIT TEST; RESERVATION OF RULING WHEN RELATED CASES MAY BE
RELEVANT TO OVERALL PICTURE [N/E Digest VIII B 1 d and XIII C]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5 and
93-CAA-1 (Sec'y Jan. 26, 1996), the Secretary detailed his view
of the law concerning hostile work environment.
The Secretary found that the principles stated in Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986) and Harris v.
Forklift Systems, Inc., 114 S.Ct. 367 (1993) are equally
applicable to environmental whistleblower cases, noting that the
Fourth Circuit had so held in an ERA case, English v. General
Electric Co., 858 F.2d 957 (4th Cir. 1988). The Secretary
then cited a Third Circuit decision, West v. Philadelphia
Electric Co., 45 F.3d 744 (3d Cir. 1995), in regard to the
necessary elements of proof in a hostile work environment
case:
(1) the plaintiff suffered intentional discrimination
because of his or her membership in the protected
class;
(2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the
plaintiff;
(4) the discrimination would have detrimentally
affected a reasonable person of the same protected
class in that position; and
(5) the existence of respondeat superior
liability.
The Secretary then endeavored to tailor these elements to a
whistleblower claim alleging hostile work environment. The first
element is modified to become an inquiry into whether the
complainant engaged in protected activity and whether he or she
suffered intentional retaliation as a result.
In regard to the element of "pervasive and regular"
discrimination, the Secretary noted that frequency and severity
are two factors that may be weighed, and cited Meritor Savings
Bank and Harris, and a 6th Circuit and a 7th Circuit
decision as guides. The Secretary, however, declined to make a
ruling on this element because the Complainant in the case sub
judice had filed several subsequent complaints about
additional alleged acts of retaliation. Those cases were still
pending before the Secretary, and the Secretary determined that
he should consider the cases together, citing decisions in which
courts had cautioned against considering incidents of
discrimination in isolation and stressed the value of an overall
picture.
HOSTILE WORK ENVIRONMENT; TANGIBLE JOB DETRIMENT NOT A
REQUIRED ELEMENT [N/E Digest XIII C]
The Secretary observed in Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2 and 5 and 93-CAA-1
(Sec'y Jan. 26, 1996), that a tangible job detriment is not a
required element of a hostile work environment case. Slip op. at
92 n.93.
INFERENCE OF CAUSATION; PROXIMITY IN TIME ALONE MAY NOT BE
SUFFICIENT TO RAISE INFERENCE IN NON-DISCHARGE CIRCUMSTANCE [N/E Digest XI A 2 b ii]
In Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), the court disagreed with the
concurring judge's suggestion that proximity in time between the
protected activity and the adverse employment action is, by
itself, sufficient to establish the inference of causal nexus
element of a prima facie case. The court distinguished
between instances in which a discharge followed soon after the
protected activity, in which case proximity in time justifies the
inference of retaliatory discrimination, and instances in which
the complainant simply was not rehired following the expiration
of an employment contract, in which case "something more
than temporal proximity" must be shown.
Bartlik, 1996 U.S. App. LEXIS 394 at *10 n.7. The
court agreed with the concurring judge that making a prima
facie case is not onerous. Nonetheless, the court indicated
that it is not justifiable to conclude that "anyone hired to
identify safety problems who does his job and does identify
problems, whose contract is not renewed would make a prima
facie of discriminatory retaliation."
Bartlik, 1996 U.S. App. LEXIS 394 at *10 n.7.
Editor's note:CompareZinn v.
University of Missouri, 93-ERA-34 and 36 (Sec'y Jan.
18, 1996), in which the Secretary found that the ALJ properly
concluded that the temporal proximity between the Complainant's
protected activity which began in August 1992 and continued
through the time of the Respondent's refusal to initiate formal
consideration of the Complainant for promotion in February 1993
was sufficient to support an inference of a causal link between
the protected activity and the adverse action.
INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; BURDEN OF
RESPONDENT ONCE DRAWN [N/E Digest XI B 3]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5 and
93-CAA-1 (Sec'y Jan. 26, 1996), the ALJ drew
an inference of causation from the Complainant's prima
facie case, and ruled that the Respondent had failed to prove
the absence of a causal link between the Complainant's
protected activity and the adverse employment action. The
Secretary held that this was a significant error in allocation of
burden of proof. Rather, it is well established that a
respondent may rebut the prima facie case "by
producing evidence that the adverse action was motivated by
legitimate, nondiscriminatory reasons." The complainant
bears the ultimate burden of proof, and the burden of persuasion
is never placed on the respondent (unless the "dual
motive" analysis applies).
INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; EXTENDED
PERIOD; PRIMA FACIE CASE THEORY [N/E Digest XI A 2 b ii]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5 and
93-CAA-1 (Sec'y Jan. 26, 1996), the Secretary
held a gap of almost four years between alleged protected
activity and adverse employment action was too extended a period
to be considered temporally proximate. The Secretary noted that
"the purpose of all of the elements of a prima facie
case in a retaliation case is to permit, under specified
circumstances, a finding of retaliation, even in the absence of
direct evidence. A finding that adverse action closely followed
protected activity gives rise to a reasonable presumption that
the protected activity caused the adverse action.
However, if the adverse action is distant in time from the
protected activity, doubt arises as to whether the alleged
retaliator could have still been acting out of retaliatory
motives." Slip op. At 86-87 (citations omitted).
Editor's note: The Secretary characterized his prior
rulings as being that "periods of up to several months
between an incident of protected activity and adverse action were
short enough to give rise to an inference that the protected
activity was the likely cause of the adverse action." Slip
op. at 85 (citations omitted). It may be noted, however, that
the Secretary has considered a period of twelve months to be
sufficiently proximate to raise the inference, although at
eighteen months, the gap begins to militate against using
temporal proximity alone to raise an inference of causation.
See decisions cited in the Slip op. at 85-86.
KNOWLEDGE REQUIREMENT; DECISION TO TAKE ADVERSE ACTION BEFORE
GAINING KNOWLEDGE OF PROTECTED ACTIVITY [N/E Digest XI A 2 c]
Where an employer makes a decision to take adverse employment
action against an employee prior to learning of the employee s
protected activity, the employee's discrimination complaint is
"doomed." See
Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5 and 93-CAA-1 (Sec'y Jan. 26, 1996) (citing
Hasan v. Reich, No. 92-5170 (5th Cir. May 4,
1993) (unpublished decision; see 1 F.3d 1136); Batts v.
NLT Corp., 844 F.2d 331, 334 (6th Cir. 1988)).
MOTIVE; DECISION NOT TO REHIRE CONTRACTOR WHO DISCOVERED
PROBLEM [N/E Digest XI B 2 c]
In Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), the Petitioner had been hired as a
"staff augmentee" to analyze fire safety issues at a
nuclear facility. Two weeks after the expiration of his
contract, the NRC announced a surprise inspection. When the
nuclear facility considered forming a review team, and after the
Petitioner's name was put forth for consideration, the Project
Engineer said "I don't want any contractors working on
problems which they discovered."
The Sixth Circuit found that this statement was not direct
evidence of retaliatory discrimination which shifts the burden to
the employer to produce evidence indicating that the adverse
action was motivated by a non-discriminatory purpose. The court,
in fact, found that it was not even enough to establish a
prima facie case. The court found that the decision not
to rehire was not shown on the record in the case to result from
retaliation rather than a legitimate and pragmatic policy
determination. The court wrote: "The goal of hiring a
review team whose members bring a new and fresh perspective to
detected problems may be part of a policy untainted by unlawful
discrimination. Plaintiff has adduced no evidence to belie this
explanation." Bartlik, 1996 U.S. App. LEXIS
394 at *11.
NRC; RELATIVE ROLES OF NRC AND DOL PURSUANT TO THE
WHISTLEBLOWER PROTECTION PROVISION THE ERA [N/E Digest I A 2]
In a decision discussing the NRC's authority to issue a
subpoena when investigating whether a respondent's past treatment
of whistleblowers posed a threat to public health and safety, the
court in United States of America v. Construction Products
Research, Inc., 1996 U.S. App. LEXIS 202 (2d Cir. 1996)
(related to 93-ERA-25), discussed the relative roles of the
Department of Labor and the NRC pursuant to the whistleblower
protection provision of the ERA, 42 U.S.C. § 5851. The
court wrote:
An employee who claims retaliation under [42 U.S.C.
§ 5851(a)(1)(D)] must file a complaint with the DOL,
which may then investigate the allegations and make a
determination. See 42 U.S.C. § 5851(b). Congress
logically gave the power to resolve § 5851 retaliation
claims to the DOL, as those claims are within the DOL's
particular area of expertise. See English v. General
Elec. Co., 496 U.S. 72, 83 n.6, 110 L. Ed. 2d 65, 110 S.
Ct. 2270 (1990) ("The enforcement and implementation of
[§ 5851] was entrusted by Congress not to the NRC--the
body primarily responsible for nuclear safety
regulation--but to the Department of Labor.") (emphasis
added); Norman v. Niagara Mohawk Power Corp., 873
F.2d 634, 637 (2d Cir. 1989).
It bears emphasis, however, that the NRC is not trying
to adjudicate [the Complainant's] individual retaliation
claim; [the Complainant] himself has already filed a claim
with the DOL and has received a favorable decision. Instead,
the NRC is attempting to investigate Respondents' general
employment practices to determine whether those practices
are having a chilling effect on would-be whistleblowers.
That aim is quite distinct from the aim of the DOL
investigation:
"The [NRC's] investigatory powers and those of
the [DOL] under [§ 5851] neither serve the same
purpose nor are invoked in the same manner. They are,
rather, complementary, not duplicative . . . Under
[§ 5851] the [DOL] apparently lacks two remedial
powers--which the [NRC] possesses--. . . the right to
take important action against the employer, and the . .
. authority to do so immediately . . . . The [DOL] may
order only reinstatement and back pay--not correction
of the dangerous practices themselves."
Union Electric, 9 N.R.C. at 138; cf. 42
U.S.C. § 5851(j)(2) (a DOL finding that a retaliation
claim has no merit "shall not be considered by the
[NRC] in its determination of whether a substantial safety
hazard exists").
Construction Products Research, Inc., 1996 U.S.
App. LEXIS 202 at *19-21.
Once the respondent articulates "...a legitimate,
nondiscriminatory basis for its action, the analysis shifts
to the issue of whether [the complainant] has demonstrated
that such basis is merely pretextual and that [the
respondent's] action was actually based on a discriminatory
motive....
[The complainant] may demonstrate that the reasons given
were a pretext for discriminatory treatment by showing that
discrimination was more likely the motivating factor or by
showing that the proffered explanation is not worthy of
credence. ... In order to determine that [the complainant]
has established discriminatory intent in regard to this
adverse action by the [respondent], however, "[i]t is
not enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff's explanation of intentional
discrimination." St. Mary's Honor Center, 113
S.Ct. at 2749, 125 L.Ed. 2d at 424. . . . Although found to
be pretextual, an employer's stated reasons may nonetheless
be found to be a pretext for action other than prohibited
discrimination. See Galbraith v. Northern Telecom,
944 F.2d 275, 282-83 (6th Cir. 1991).
Slip op. at 9-10 (some citations omitted).
PRETEXT; SEIZING ON COMPLAINANT'S REVELATION THAT HE WAS
UNDER STRESS AS AN EXCUSE FOR RETALIATION [N/E Digest XI C 2 a]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Secretary found
that a supervisor who ordered the Complainant to submit to a
psychological evaluation had the duty and responsibility to
insure that the people working for him were fit for duty, and
that the Complainant had told the supervisor and others that he
was under stress. Nonetheless, the Secretary found that stress
was not the reason for the order, but was seized on as an excuse
under the circumstances of the case.
PROTECTED ACTIVITY; COMPLAINT TO MANAGEMENT ALLEGING
RETALIATION FOR PROTECTED SAFETY CONCERNS [N/E Digest XII D 9]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Secretary held
that a complaint to management alleging retaliation for his
safety concerns was protected activity. In Diaz-
Robainas the Complainant alleged in a letter complaining
about a negative performance appraisal that the appraisal was in
retaliation for his "commitment to projects that [he]
considered critical for the nuclear safety of [the facility] and
which [certain supervisors] for budgetary or other reasons,
clearly opposed." The Secretary found that the
Complainant's perception of retaliation for raising protected
concerns was reasonable, and that his raising of the fairness of
the rating was not disingenuous.
PROTECTED ACTIVITY; COVERAGE OF CONCERNS ABOUT CRIMINAL
ACTIVITY OF THIRD PARTIES VERSUS CONVENTIONAL MOTOR VEHICLE
SAFETY; ARMORED VEHICLE; NO SPECIFIC FEDERAL VIOLATION NECESSARY
FOR REASONABLE APPREHENSION/WORK REFUSAL CASE [STAA Digest V A 5]
In Caimano v. Brink's,
Incorporated, 95-STA-4
(Sec'y Jan. 26, 1996), a case involving a armored truck, the
Secretary stated that the ALJ properly questioned whether the
whistleblower provision of the STAA covers the raising of
security concerns related solely to the threat of criminal
activity posed by third parties. The Secretary confined his
analysis to concerns related to conventional motor vehicle
safety, although he noted that some of the concerns raised by the
Complainant were pertinent to both the threat of criminal
interference and to commercial vehicle safety covered by the
STAA. Specifically, the Secretary found that the Complainant's
concerns about malfunctioning electric door locks (which were
merely back-ups to mechanical locks) and lack of interior
gunports were not related to conventional motor vehicle safety.
Concerns about exhaust fumes in the cargo compartment and radio
communication (needed for safe and effective direction to the
driver), however, were covered.
The Secretary noted that it is not necessary for a
complainant in an STAA whistleblower case to establish a specific
Federal violation under the reasonable apprehension/work refusal
clause. The Secretary stated that "[s]uch [a] requirement
would vitiate the purpose of the statute in circumstances such as
this, where the commercial motor vehicle is being operated in an
atypical manner that is not directly addressed by a Federal
regulation." Slip op. at 13 n.10.
PROTECTED ACTIVITY; RELEVANCE OF OTHER WORKERS HAVING RAISED
SIMILAR CONCERNS [N/E Digest XII C 5]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Secretary noted
that the fact that other workers raised similar internal safety
concerns during the course of performing their jobs does not
render the Complainant's concerns unprotected.
PROTECTED ACTIVITY; THREAT TO GO TO THE PRESS; RELEVANCE OF
COMPLAINANT'S MIXED OR SELF-SERVING MOTIVES [N/E Digest XII B 2 d and XII C 3]
In Diaz-Robainas v.
Florida Power & Light Co., 92-ERA-10 (Sec'y Jan.
10, 1996), the Complainant's
threat to go the press with his safety concerns was protected
activity. His threat was protected even if he also intended to
expose matters other than his protected concerns. The ALJ found
that the Complainant misused the ERA by raising safety issues
only to intimidate management into increasing his performance
rating. The Secretary noted, however, that he has held that
where the complainant has a reasonable belief that the respondent
is violating the law, other motives he or she may have had for
engaging in protected activity are irrelevant.
REASONABLE APPREHENSION; REASONABLENESS DETERMINED BY
INFORMATION AVAILABLE AT TIME OF WORK REFUSAL [STAA Digest V A 4 b i]
The determination regarding whether or not a complainant was
reasonably apprehensive that driving a truck could result in
possible injury to himself of the public must focus on the
information available to the complainant at the time of the work
refusal. Caimano v.
Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26,
1996).
REFUSAL TO DRIVE; CORRECTION OF SAFETY ISSUE; CONSTRUCTIVE
DISCHARGE [STAA Digest V A 4 c 6]
In Shoup v. Kloepfer
Concrete Co., 95-STA-33
(Sec'y Jan. 11, 1996), the Complainant refused to drive an
overweight mixer, and the Yard Supervisor wanted to discharge the
Complainant because of this protected activity. The Yard
Supervisor, however, did not have the authority to fire the
Complainant, and when he sought the authority from the Manager,
the Manager called the Vice President. Ultimately, the
Complainant was offered an alternative train mixer, which could
take the load legally. The Complainant walked out, stating that
he had been fired. The Complainant had previously made it known
that it considered train mixers to be unsafe.
The Secretary found that the Complainant quit voluntarily,
that the offer of a train mixer was a reasonable solution, and
that there had not been a constructive discharge. There was no
evidence that other drivers or employers believed that train
mixers, used widely in the industry, were inherently unsafe.
RELIEF; DENIED CONSIDERATION FOR PROMOTION [N/E Digest XVI B 7]
In Zinn v. University
of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996),
it was found that one Complainant
had been denied consideration for promotion to Senior Research
Scientist based on discriminatory retaliation for protected
activity by his employing University. The Secretary ordered the
University to establish a committee to consider that
Complainant's suitability for promotion under terms set by the
ALJ's recommended order. The ALJ had recommended that the
committee be comprised only of scientific peers not previously
involved in the DOL proceeding as witnesses or an underlying NRC
investigation. The committee was to be selected by an official
also without previous involvement in the matter. The ALJ
directed that if the University could not find a suitable
official to set up the committee, it shall arrange for the
selection to be made by a suitable official from another
university or scientific institution. SeeZinn v.
University of Missouri, 93-ERA-34 and 36, slip op. at
43 (ALJ May 23, 1994). The Secretary, consistent with the ALJ's
recommendation, ordered that if the committee found the
Complainant suitable for promotion, he should be promoted and
provided appropriate back pay with interest.
RELIEF; POSTING OF DECISION [N/E Digest XVI G 2 a]
In Zinn v. University
of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary ordered the
Respondent to post on all bulletin board of the Missouri
University Research Reactor, where official documents are posted,
a copy of his Decision and Order for a period of 60 days,
ensuring that it is not altered, defaced or covered.
SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA [N/E Digest XX E]
In Jackson v. Science
Applications International Corporation Division 012, Savannah
River, 95-ERA-24 (Sec'y Jan. 17, 1996), the Secretary
followed Teles v. U.S. Dept. of Energy, 94-ERA-22 (Sec'y
Aug. 7, 1995), in dismissing the co-Respondent Department of
Energy because it is not subject to suit under ERA section 211,
sovereign immunity not having been waived under that provision.
SUBPOENA POWER OF NRC [N/E Digest VII B 1]
When investigating whether a respondent's past treatment of
whistleblowers posed a threat to public health and safety, the
court in United States of America v. Construction Products
Research, Inc., 1996 U.S. App. LEXIS 202 (2d Cir. 1996)
(related to 93-ERA-25), held that the NRC has subpoena power
pursuant to 42 U.S.C. § 2201(c). The court rejected the
respondent's argument that subpoena power for such an
investigation was not within the NRC's statutory authority
because, under the respondent's theory, Congress delegated to DOL
the task of investigating all potential nuclear safety risks
resulting from adverse employment practices.
TIME PERIOD FOR ISSUANCE OF SECRETARY'S FINAL DECISION AND
ORDER; TOLLING [STAA Digest II F]
Although 29 C.F.R. § 1978.109(c) provides that a final
decision and order will be issued by the Secretary in the STAA
whistleblower proceeding within 120 days after issuance of the
decision and order of the ALJ, the Secretary in Caimano v.
Brink's, Incorporated, 95-STA-4, slip op. at 2 n.1
(Sec'y Jan. 26, 1996), held that the time period was tolled where
the decision had been issued expeditiously, but beyond the 120
day period, where during the interim between issuance of the
ALJ's decision and the Secretary's decision there had been a 17
day suspension of operations by the Department of Labor and four
days of closure due to blizzard conditions in Washington D.C.
TIMELINESS; CONTINUING VIOLATION; PERFORMANCE RATING
GENERALLY CONSIDERED A DISCRETE ACT [STAA Digest II B 2 e]
A poor performance rating generally is a discrete act which
has the degree of permanence which should trigger an employee's
awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued existence of
the adverse consequences of the act is to be expected without
being dependent on a continuing intent to discriminate. In
Diaz-Robainas v. Florida
Power & Light Co., 92-ERA-10 (Sec'y Jan. 10,
1996), several of the Complainant's complaints about performance
appraisals were found to be untimely, and not cognizable under a
continuing violation theory.
Nonetheless, the Secretary noted that they were evidence to
consider when assessing the true character of other matters
occurring within the limitations period.
TIMELINESS; CONTINUING VIOLATION DOCTRINE; REQUIREMENT OF
DISCRIMINATORY ACT WITHIN LIMITATIONS PERIOD; RELATIONSHIP TO
HOSTILE WORK ENVIRONMENT [N/E Digest III C 4]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5 and
93-CAA-1 (Sec'y Jan. 26, 1996), the Secretary
noted that there are two elements to the continuing violation
theory: (1) the complainant must show a course of related
discriminatory conduct, and (2) the charge must be filed within
30 days of the last discrimination. The Complainant attempted to
show that the alleged discrimination continued to within 30 days
of the filing of the complaint based on the fact that he
continued to feel the effect of an assignment of office space
that was isolated from fellow employees and involved exposure to
mercury vapor at the time he filed his complaint. The Secretary
rejected this reasoning, noting that the fact that a complainant
continues to suffer the effects of a retaliatory act outside the
limitations period does not render a claim timely. The Secretary
held that the act of assigning the Complainant to that
office space occurred only once, and that this act was similar to
other types of discrete personnel actions such demotions,
transfers, and negative performance rating, all of which have
lingering effects but for which relief from the limitations
period is not granted. Slip op. at 70-77.
The Secretary found that although the ALJ was correct in noting a
connection between a hostile work environment and the continuing
violation theory, he erred in finding that a showing of hostile
work environment is sufficient itself to conclude that the
continuing violation doctrine applies. Rather, the second part
of the continuing violation doctrine - an instance of
discrimination within the limitations period - must be present
for the a complaint to be considered timely filed pursuant to
that doctrine. Slip op. at 78-80.
