NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

[Nuclear and Environmental Digest III A]
TIMELINESS, GENERALLY

See generally Foley v. Boston Edison Co., 1997-ERA-56 (ALJ Dec. 2, 1998), for a recommended decision that provides a thorough discussion of time limitations for filing ERA complaints, the continuing violation theory, whether an oral complaint can be considered properly filed, and equitable tolling.

[Nuclear and Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; NON-RESPONSE OF EMPLOYER TO COMPLAINANT'S LETTER

In a Recommended Order Granting Motion to Dismiss in Flynn v. OK Industries, Inc., 1999-WPC-1 (ALJ Jan. 13, 1999), Respondent had sent a letter to Complainant changing his status to medical leave without pay, and informing Complainant that its decision would not be reviewed until Complainant supplied certain medical records. Subsequently, Complainant sent a letter to Respondent requesting accrued vacation pay and certain other information. Respondent did not respond to Complainant's letter. Complainant's complaint with DOL was untimely if the date of the alleged last adverse action was calculated from the date of Respondent's letter, but timely if calculated from the date of Complainant's letter to Respondent. The ALJ concluded that Respondent's non-response could not be construed as a separate act of discrimination, citing Hadden v. Georgia Power Co., 1989-ERA-21 (Sec'y Feb. 9, 1994). The ALJ wrote:

I am also persuaded by Respondent's argument regarding the dangers of allowing a claimant to simply "reset the clock" on his own initiative. Under Complainant's interpretation of the law, an employee may revive an otherwise time-barred claim at any time by his own act, e.g., mailing a letter. If this is allowed, the only way an employer in a similar situation could avoid committing a possibly discriminatory act is to give in; if the employer does not, or simply ignores the letter, then that decision would be the subject of a discrimination claim. (See Respondent's Brief, p.3-4). This can not be the intent of the law.

[Nuclear and Environmental Digest IV C 5]
TIMELINESS OF REQUEST FOR HEARING; EQUITABLE TOLLING NOT AVAILABLE WHERE LACK OF DUE DILIGENCE

In Howlett v. Northeast Utilities, 1999-ERA-1 (ALJ Dec. 28, 1998), Complainant and his attorney were both sent copies of a Letter of Determination by OSHA via certified mail, and both received the letter shortly thereafter. Neither Complainant nor his attorney timely exercised the right to appeal. Complainant's explanation was that he that understood his attorney would respond appropriately to any correspondence. Complainant's attorney, however, did not appeal because one of his employees misfiled the certified letter. The ALJ held in his recommended decision that "[w]hile this is regretful, it is not sufficient grounds to invoke the rarely exercised concept of equitable tolling. As the Second Circuit has opined, lack of due diligence on the part of a complainant or the complainant's attorney is insufficient to justify application of equitable tolling. South v. Saab Cars USA, Inc., 28 F.3d 9 (2d Cir. 1994) (dismissing the complaint where plaintiff's counsel mistakenly relied on state procedure for filing of a federal complaint)."

[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; RELATIONSHIP TO FOIA

In Rimar v. U.S. Environmental Protection Agency, 1998-SDW-2 (ALJ Feb. 16, 1998), Complainant sought reconsideration of a protective order that imposed restrictions on Complainant's use of certain material supplied in response to discovery requests, and required Complainant's return of some materials at the conclusion of the litigation. Complainant's motion was based on a number of grounds.

The ALJ found that Complainant had misinterpreted the impact of the protective order: it only required that Complainant maintain, from the date of the protective order, the confidentiality of documents he obtained in response to certain discovery demands: it did not prohibit disclosures that might have occurred before the order was issued or require Complainant to maintain the confidentiality of identical documents that have been or may be received through other means, such as litigation under the Privacy Act or FOIA

Complainant argued that he had a "clear-cut" Privacy Act and FOIA entitlement to the materials within the scope of the protective order. The ALJ's order contains a discussion of the difference between information gathered in response to discovery and information obtained through the Privacy Act and FOIA. The ALJ observed that Complainant was granted access through discovery to certain categories of information because it was deemed relevant to the issues in litigation, even though it appeared that at least some of that information would not be available under either FOIA or the Privacy Act (despite Complainant's assertions to the contrary). Once the litigation ended, the need for the information vanished. The ALJ noted that Privacy Act and FOIA disputes were beyond the jurisdiction of an ALJ to decide. Finally, the ALJ rejected Complainant's argument that public policy required reconsideration of the protective order. The ALJ agreed that "in circumstances where materials obtained during the discovery process demonstrate persecution of whistleblowers or other illegal conduct, public policy' would probably preclude continuation of a protective order prohibiting disclosure of such materials." However, his careful review of the materials lead to the conclusion that such circumstances did not exist in the instant case.

[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; DISCIPLINARY RECORDS OF OTHER EMPLOYEES; COMPLAINANT'S PRACTICE OF POSTING DEPOSITIONS ON THE INTERNET

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 1, 1999), Complainant sought an order compelling Respondent to answer a request for production of documents regarding disciplinary actions taken against any employees for violation of information release regulations. Complainant agreed in the motion to enter into a protective order to assure the privacy interests of the subject employees. Respondent opposed the motion based on its employees general right and expectation of privacy in their employment matters, including disciplinary actions.

The ALJ found that the documents sought were relevant to the subject matter of the litigation, outweighed the employees' right to privacy, and were therefore discoverable (the ALJ's order includes a concise discussion of scope of discovery in discrimination cases). Nonetheless, the ALJ held that a protective measure was appropriate because the information sought was sensitive and the kind that the employees would expect to be held in confidence. Therefore the ALJ ordered the parties to enter into a confidentiality agreement, and directed that the disclosure be limited to Complainant's counsel and experts retained in the case, to the extent necessary for trial preparation, and that the files were to be kept confidential. The ALJ directed that "Complainant is to be prohibited from using these files for any purpose other than this action and copies of any files produced are to be maintained in counsel's custody."

Respondent also sought a protective order requiring that Complainant keep confidential the names and other identifying information of Respondent's employees that Complainant seeks to depose. Respondent sought such an order based on the assertion that Complainant had "plastered this case on the Internet, including loading the complete deposition testimony of different Wackenhut employees." Respondent further asserted that the sensitive nature of the information contained in the depositions, such as disciplinary actions taken against named employees, should be kept confidential.

The ALJ noted that the Secretary of Labor has held that litigants have a general First Amendment freedom to disseminate freely information gained through discovery, absent a valid court order. The ALJ also noted, however, that the OALJ rules of practice provide an opportunity for a party ordered to produce confidential documents to move for a protective order. See 29 C.F.R. § 18.15. Under the circumstances, the ALJ found that a protective order should be issued to shield employees of Respondent who have been subject to disciplinary actions from further embarrassment.

In a subsequent order, the ALJ prescribed the conditions and precautions for the protective order because the parties were unable to agree on the terms of such an order. Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 18, 1999). Among other conditions, the ALJ ordered that confidential documents be reviewed, received, and held confidential by counsel for Complainant and used only for purposes of the instant litigation. Complainant's counsel was to maintain a list of all persons to whom a disclosure was made and copies of confidentiality agreements signed by them (e.g., Complainant, co-counsel, support staff, party experts).

[Nuclear and Environmental Digest VII B 5]
QUASHING OF SUBPOENAS; STRIKING OF WITNESS WHO REFUSES TO BE DEPOSED

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Jan. 28, 1999)(order granting motion to quash subpoena), a person listed on Complainant's list of intended witnesses moved to quash a subpoena served on him by Respondent. That person was not a party to the action nor an employee of Respondent. The ALJ granted the motion to quash, citing 29 C.F.R. § 18.24 and Malpass v. General Elec. Co., 1994 WL 897244 at *9, 85-ERA-38/39 (Sec'y Mar. 1, 1994). The ALJ suggested that the movant consider voluntary participation in a deposition.

In a simultaneous order, the ALJ granted Respondent's motion to strike the same witness from Complainant's witness list, finding that it would unfairly prejudice Respondent if Complainant was allowed to call that witness at the hearing without first allowing Respondent to depose the witness. Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Jan. 28, 1999) (order granting motion to strike witness). In a subsequent order, however, the ALJ rescinded this order based on Complainant's offer of proof that established to the ALJ's satisfaction that at least some of this witness' testimony would be an integral part of Complainant's case and should be allowed at the hearing. Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 18, 1999).

[Nuclear and Environmental Digest VII C 1]
SUMMARY JUDGMENT; COMPLAINT RAISED SUFFICIENT INFORMATION TO WARRANT FURTHER INQUIRY

In Moore v. U.S. Dept. of Energy, 1998-CAA-16 (ALJ Dec. 24, 1998), the ALJ declined to grant summary judgment against Complainant based on Respondent's contention that Complainant had failed to allege a prima facie case, where, although Complainant's complaint was lacking in specific details, it stated enough to merit inquiry.

[Nuclear and Environmental Digest VIII A 5]
RECUSAL; BOTH PARTIES BELIEVE ALJ BIASED

In Fanning v. Ramsey Schilling Consulting Group, 1998-CAA-2 (ALJ Jan. 21, 1999), both Complainant and Respondent accused the ALJ of being biased toward the other party and requested that he recuse himself. The ALJ granted the requests, finding that "it is evident that the animosity between the parties is so great that my attempts to be impartial have been misinterpreted by each party as bias toward the other party."

[Nuclear and Environmental Digest VIII A 8]
COMPLAINT OF CONTINUING HARASSMENT; ALJ'S DISCRETION IN REGARD TO WHETHER TO REOPEN THE RECORD AND RECONVENE THE HEARING

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 6-7 (ARB Feb. 9, 1999), the ARB denied Complainant's request that the Board consider newly tendered evidence of continuing harassment. The ALJ had previously denied Complainant's motion to reopen the record and reconvene the hearing on the ground that granting the motion would unduly delay a final disposition, and that Complainant could file a new complaint with OSHA. The ARB held that the ALJ's denial of the motion to reopen the record and reconvene the hearing was sound because (1) "an ALJ has control of his docket and reasonably may decide that it is more expeditious to handle new allegations in a separate complaint", and (2) Complainant "has recourse to a separate retaliation complaint under which he may receive a complete remedy." The ARB observed that the CAA and similar statutes explicitly forbid acts of retaliation against an employee because the employee has filed a complaint under the whistleblower provision. 42 U.S.C. §7622(a)(1). Thus, the ARB declined to consider Complainant's newly tendered documentation.

[Nuclear and Environmental Digest VIII B 2 b]
EVIDENCE SUBMITTED WITH BRIEF BEFORE ARB

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 5 (ARB Feb. 9, 1999), Respondent supplied documents attached to its opening brief before the ARB to support its argument that Complainant had a prior tardiness problem. The ARB observed that because those documents were not presented before the ALJ, they violated the rule that the record is closed at the conclusion of the hearing, and additional evidence shall not be accepted, absent a showing that it is new and material and was not readily available prior to the close of the hearing. 18 C.F.R. §18.54(a) and (c) (1998). Respondent asserted that the rule was not violated because it lacked notice, prior to the hearing, that Complainant was challenging the tardiness disciplinary notice. The ARB found that Complainant's complaint did not mention the issue, but that the ALJ cured the notice problem by inviting Respondent to submit copies of Fabricius' time cards after the hearing and by asking both parties to address the tardiness issue in their post hearing briefs. The ARB found that the request for post-hearing evidence and argument logically extended to all documents in the Respondent's possession concerning Complainant's tardiness, and declined to consider the additional evidence.

[Nuclear & Environmental Digest IX D 3]
NEW EVIDENCE

In Madonia v. Dominick's Finer Foods, Inc., 1998-STA-2 (ARB Jan. 29, 1999), the Board remanded the case to the ALJ for receipt into evidence, of a letter that Respondent obtained after the issuance of the ALJ's recommended decision as the result of discovery in a separate lawsuit under the ADA. The letter was relevant and material, see 29 C.F.R. § 18.54(c), because it tended to bolster Respondent's credibility concerning a crucial date that related to whether Respondent's discharge of Complainant was motivated by protected activity or by Complainant's failure to abide by a condition imposed on his continued employment following an altercation.

In Foley v. Boston Edison Co., 1997-ERA-56 (ARB Feb. 2, 1999), in contrast, the ARB denied a motion to reopen where Complainant did not yet have possession of any additional documents, had not shown that the information would be relevant, had not shown that the information was not previously available at trial, and it appeared that Complainant was "merely ... hoping or expecting that these inquiries by government agencies [studies or investigations by the NRC or OIG] might generate information useful to his case."

[Nuclear and Environmental Digest X D]
DIRECT EVIDENCE OF RETALIATION; SUPERVISOR'S DISAPPROVAL OF EMPLOYEE'S COMPLAINING TO GOVERNMENT AGENCIES

A supervisor's disapproval of an employee's complaining to a government agency indicates discriminatory intent. See Blake v. Hatfield Elec. Co., 1987-ERA-4, slip op. at 5 (Sec'y Jan. 22, 1992) (supervisor's comment that the complainant used the NRC as a threat found to "virtually amount[] to direct evidence of discrimination). The supervisor who issued a disciplinary notice for tardiness opined at the hearing that Complainant was not justified in making a complaint to OSHA -- that "I feel that [Complainant] is using OSHA and that the warning was merited." The ARB found that this statement was very strong evidence of discriminatory intent. Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 5-6 (ARB Feb. 9, 1999).

[Nuclear and Environmental Digest XI B 2 b ix]
CHAIN OF COMMAND

Under the whistleblower protection provisions of the ERA and similar laws, an employee may not be disciplined for failing to observe an established chain of command when making safety complaints. Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 4 (ARB Feb. 9, 1999).

[Nuclear and Environmental Digest XI C 2 a]
PRETEXT

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 n.10 (ARB Feb. 9, 1999), Respondent's purported reason for issuing a warning notice to Complainant for leaving the work site was found to be pretext where Respondent had no formally documented policy about leaving a work site to report an environmental hazard; even if a policy existed it was not applied uniformly (co-worker who also left the site was not sent a warning notice); and, it was unclear that such a policy was really violated (Complainant had stopped at the Town offices to attempt to obtain information about possible asbestos at the work site; he did this on his way back to the garage at the end of the work day).

[Nuclear and Environmental Digest XI E 14]
SHIFTING EXPLANATION MAY INDICATE PRETEXT

A shifting explanation for the adverse action often is an indication that the asserted legitimate reasons are pretext. Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 4 n.10 (ARB Feb. 9, 1999).

[Nuclear and Environmental Digest XII C 4]
PRIMA FACIE CASE; OCCUPATIONAL EXPOSURE NOT RELATED TO NUCLEAR SAFETY

In Cox. v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ALJ Feb. 8, 1999), the ALJ found that Complainants failed to establish that they engaged in protected activity under the ERA, where their case was based on allegations that they were the victims of cyanide intoxication related to an occupational exposure. The ALJ found that such exposure was not related to nuclear safety and therefore not protected under the ERA. The ALJ alternatively found that, even if the allegations were determined to fall under the ERA, Complainants' belief that they were harmed by an occupational source of cyanide was unreasonable. The ALJ found overwhelming evidence that there was no occupational source for cyanide exposure, and therefore it was not objectively reasonable for Complainants to perceive that their illnesses were caused by occupational exposure.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; OFFER OF RE-EMPLOYMENT DURING SETTLEMENT NEGOTIATION THAT INCLUDED DISCRIMINATORY TERM

In Smyth v. Johnson Controls World, Inc., 1998-ERA-23 (ALJ Feb. 5, 1999), the ALJ found in his recommended decision that Respondent's presentation to Complainant during a settlement negotiation of an ERA whistleblower complaint, of a letter that significantly restricted the departments within which the Complainant could possibly be re-hired, and impeded his ability to fairly compete for any position for which he was qualified, was itself an act of discrimination under the ERA.

[Nuclear and Environmental Digest XIV B 1]
DERIVATIVE LIABILITY

In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8, 1998), the ALJ had found in a prior recommended decision, that the corporate connection between Westinghouse Hanford Company and Westinghouse Savannah River Company was close enough to attribute the actions of one corporation to the other for purposes of whistleblower protection. The ARB had found that the ALJ's conclusions in this respect were fully supported by the record before the ALJ, but remanded for additional fact-finding and consideration of appropriate relief.

On remand, Respondent presented testimony tending to show that the corporations were separate and distinct, but the ALJ found the declarations lacking in credibility, having been made by managers or former managers for Respondent who engaged in retaliatory actions, and many of whom harbored personal antagonism toward Complainant. The ALJ also found that the Board's holding on the question of WSRC responsibility now constituted the law of the case.

The ALJ also addressed Respondent's citation of United States v. Bestfoods, 118 S.Ct. 1876 (1998), a CERCLA case not involving the employee protection provision, in which the Supreme Court held that only when the corporate veil may be pierced as a matter of corporate law can a parent corporation be charged with derivative liability. The ALJ indicated that if Bestfoods applies, Complainant probably could not show that derivative liability applies, but concluded that because of a concession by Complainant in his brief on remand, and without further instructions from the Board, he would not attempt to make any findings pursuant to Bestfoods.

[Nuclear and Environmental Digest XVI A 2]
REMEDIES; CLAIMS FOR PREMATURE DEATH, LOSS OF LIFE

In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Jan. 4, 1999), Complainant (the employee's estate) argued that adverse treatment of the employee by Respondents was a causative factor of his fatal heart attack, and sought compensatory damages for loss of life (e.g., lost wages for remaining work expectancy, lost pension, lost employee benefits) and damages for premature death. The ALJ held that such damages were not compensable under the ERA employee protection provision; that the estate was entitled to no more and no less than the employee had he pursed the action during his lifetime.

[Nuclear and Environmental Digest XVI A 2]
REMEDIES; MUST BE CONSEQUENCES OF DISCRIMINATION, NOT EXPOSURE TO HAZARD

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 6-7 (ARB Feb. 9, 1999), the ARB affirmed the ALJ's recommended finding that Respondent violated the employee protection provision of the CAA when it disciplined Complainant for leaving the work site without permission, and tardiness, because it was pretext for the real motive of retaliation for Complainant's seeking of information about asbestos on the work site. Complainant had made inquiries after debris and dust fell on him and a co-worker during a demolition, and Complainant suspected that the material contained asbestos. Later testing confirmed that asbestos was present.

The ARB affirmed the ALJ's order that Respondent repay Complainant for the cost of obtaining medical treatment and medications for his emotional upset caused by Respondent's wrongful conduct, clarifying that Respondent's liability is limited to the medical costs paid by Complainant himself. The ARB, however, rejected the ALJ's recommended order that Respondent pay for medical treatment for Complainant's exposure to asbestos and the cost of his contaminated clothing, because such costs were not a consequence of Respondent's discrimination.

[Nuclear and Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; REQUIREMENT OF EVIDENCE OF REASONABLENESS OF HOURLY RATE

In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 (ARB Feb. 9, 1999), the ARB noted that it has held that a "complainant's attorney fee petition must include adequate evidence concerning a reasonable hourly fee for the type of work the attorney performed and consistent [with] practice in the local geographic area,' as well as records identifying the date, time, and duration necessary to accomplish each specific activity, and all claimed costs," citing Van Der Meer v. Western Kentucky Univ., 1995-ERA-38, slip op. at 10 (ARB Apr. 20, 1998).

Because Complainant's counsel's fee petitions did not contain "evidence, such as an affidavit of counsel, indicating that the hourly rate charged by counsel was reasonable for this type of case or that the hourly rate was consistent with practice in the Boston area, where counsel is located, " the ARB remanded the case to the ALJ for a supplemental recommended decision on the reasonableness of the hourly attorney rates requested.

[Editor's note: The ARB seems to be requiring evidence of reasonableness of the hourly rate even if the fee petition is not opposed. See Fabricius v. Town of Braintree/Park Dept., 97-CAA-14 @ 21 (ALJ Sept. 8, 1997), where the ALJ observed that "Respondent has failed to submit any objection to the fees and expenses requested." Compare Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Feb. 2, 1999) (attorney fee petition, accompanied by affidavit, approved where Respondent did not object) ].

[Nuclear and Environmental Digest XVI F]
EXEMPLARY DAMAGES

In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8, 1998), the ALJ recommended exemplary damages of $12,500, based on a comparison with other cases.

[Nuclear and Environmental Digest XXI B]
ISSUE PRECLUSION; SUMMARY JUDGMENT

In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8, 1998), Respondent asserted that the ALJ should apply issue preclusion because a Washington State Superior Court granted Respondent's motion for summary judgment and dismissed Complainant's claims (one of which was wrongful discharge) before that court. The ALJ found that issue preclusion did not apply because the Superior Court judge gave no explanation for the grounds or reasoning underlying his decision and made no findings of fact. The ALJ also found that issue preclusion did not apply because it was not readily apparent that the standards of proof were the same for the state claims and the federal claims before the ALJ.