WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
April 27,
1998
This newsletter covers materials that became available during the period from March 7, 1998 to
April 27, 1998.
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 WHISTLEBLOWER
DECISIONS
[N/E Digest III C 1]
CONTINUING VIOLATION DOCTRINE
Citing Connecticut Light & Power Co. v.
Secretary of United States Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996), for a
description of the continuing violation standard exception to the strict application of the
limitations period for filing a whistleblower complaint, the Sixth Circuit in Varnadore v. Secretary of Labor,
Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.), summarized the
continuing violation theory as follows:
In other words, under the continuing-violation doctrine, a single non
time-barred act can save other acts that are time-barred but the mere fact that
retaliation or discrimination continued over a long period does not mean one can simply
ignore statutes of limitations altogether.
[N/E Digest III C 1]
CONTINUING VIOLATION STANDARD; STANDARD OF REVIEW; SECRETARY'S
INFERENCES
In Varnadore v. Secretary of
Labor, Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.),
Complainant asserted on appeal to the Sixth Circuit that the Secretary had wrongly disregarded
the factual findings of the ALJ relating to application of the continuing violation standard
exception to the strict application of the limitations period for filing a whistleblower complaint.
Essentially, the question related to whether Complainant was "threatened" with an
unfavorable office assignment during the period in which his complaint would not have been
time barred. If there was no threat, as the Secretary found, the Secretary correctly found that the
complaint was time barred because no violative act occurred within the relevant time period.
The court noted that its standard of review is that it "may overturn the Secretary's
decision only if we find that the decision 'is unsupported by substantial evidence' or if it is
'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"
Id. (citations omitted) The court added that "[t]his highly deferential standard of
review is not altered merely because the Secretary disagrees with the ALJ" and that it
defers to the inferences that the Secretary derives from the evidence, not the ALJ's. Id.
(citations omitted).
The court found that the ALJ's recommended decision did not contradict the Secretary on
this point. Moreover, the court found that even if the ALJ had reached the opposite conclusion
(that discussion of an office reassignment was retaliation), the Secretary was not prohibited from
disagreeing, and the Secretary's decision was supported by substantial evidence.
[N/E Digest VI E]
TIMELINESS OF REQUEST FOR HEARING
In Shelton v. Oak Ridge National
Laboratory, 95-CAA-19 (ALJ Apr. 21, 1998), Complainant moved for
reconsideration of an order denying Complainant's motion for default judgment based on
Respondents' failure to file a timely request for hearing with the OALJ. Complainant argued that
the time period for requesting a hearing stated at 29 C.F.R. § 24.4(3)(i) is jurisdictional,
citing Crosier v. Westinghouse Hanford
Co., 92-CAA-3 (Sec'y Jan. 12, 1994) and Backen v. Entergy Operations, 95-ERA-46
(ARB June 7, 1996). The ALJ denied the motion, finding that the the unambiguous holding in
both Crosier and Backen, was not that the five day time period for filing a
request for a hearing is jurisdictional, but that equitable grounds for modification of the time
deadline had not been established. The ALJ also noted that in Ward v. Bechtel Const., Inc., 85-ERA-9 (Sec'y
July 11, 1986), the Secretary had indicated that an untimely request for a hearing may be excused
on grounds of mistake, inadvertence, or excusable neglect.
The original order denying default judgment was based on the finding that, although
Respondents had failed to file their hearing request with the OALJ, they had timely notified
every relevant party; that the parties had an opportunity to prepare and respond to the request,
and Complainant had it fact taken a cross-appeal; that the failure to file its appeal with OALJ was
a mere clerical error; and there was no showing of prejudice to Complainant. Shelton v. Oak Ridge National
Laboratory, 95-CAA-19 (ALJ Aug. 2, 1995).
[N/E Digest VII B 1]
COMPELLING ATTENDANCE OF WITNESSES; SUBPOENA POWER
In Immanuel v. USDOL,
No. 97-1987 (4th Cir. 1998)(per curiam) (unpublished) (case below ARB No. 96-022, ALJ No.
95-WPC-3), the Fourth Circuit held that the ALJ abused his discretion when he denied
Complainant's request to compel the attendance of witnesses within the control of Respondent
(Complainant's former employer).
The court agreed that the ALJ did not have the authority to issue subpoenas to compel the
appearance of witnesses under the FWPCA, 33 U.S.C. § 1367(a). See 33 U.S.C.
§ 1369(a) (authorization of subpoenas under FWPCA excludes whistleblower provision);
see also 5 U.S.C. § 555(d); 5 U.S.C. § 556(c)(2). Nonetheless, the court
found that 29 C.F.R. § 18.29(a) provides clear authority for an ALJ to compel the
appearance of all witnesses within the control of Respondent.
[N/E Digest VIII A 5]
RECUSAL; BASIS ON ASSERTED JUDICIAL ANNOYANCE WITH COUNSEL AND
ERROR IN APPLICATION OF LAW
In Shelton v. Oak Ridge National
Laboratory, 95-CAA-19 (ALJ Apr. 21, 1998), Complainant moved for the recusal
of the ALJ in regard to consideration of a motion for reconsideration based on alleged
"apparent and continuing prejudice against and annoyance at counsel," and on an
error of law which caused "an appearance of impropriety in appearing to punish both
counsel and Complainant...."
The motion was determined to be frivolous, the ALJ finding no credible basis for
concluding that he had been improperly biased in the matter. The ALJ wrote: "Neither
judicial criticism of counsel nor adverse judicial rulings, standing alone, constitute a valid basis
for a motion for disqualification. Rather, disqualification must be based on such a high degree of
favoritism or antagonism as to make fair judgment impossible. Liteky v. United States,
--- U.S. ----, ----, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). See also Standing
Committee on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55
F.3d
1430 (9th Cir. 1995); Flor v. U.S. Dept. of
Energy, 93-TSC-1 (Sec'y Dec. 9, 1994)."
[N/E Digest VIII B 1 d]
AUTHORITY OF ADMINISTRATIVE REVIEW BOARD
In Varnadore v. Secretary of
Labor, Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.),
Complainant argued that the Administrative Review (ARB) is an unauthorized decisionmaking
body, and therefore its decisions in the matter must be vacated. Complainant argued that the
creation of the ARB was a major substantive change, requiring either congressional approval or
notice-and-comment rulemaking, citing the Appointments Clause and the Presentment Clause of
the Constitution.
The Sixth Circuit, citing the composition and functions of the ARB, concluded that the
members of the ARB are, at most, the type of "inferior" officers that the
Appointments Clause allows the heads of departments, such as the Secretary of Labor to appoint.
The court also found that because "the establishment of the ARB and delegation to it of
final decisionmaking responsibility is authorized under the Appointments Clause and federal
law, it is plain that the Secretary has not usurped any legislative function in violation of the
Constitution." The court did not discuss notice and comment rulemaking.
[N/E Digest IX D 1]
MOTION FOR RECONSIDERATION; APPLICATION OF FEDERAL RULES OF
CIVIL PROCEDURE TO INTERLOCUTORY ORDER
In Shelton v. Oak Ridge National
Laboratory, 95-CAA-19 (ALJ Apr. 21, 1998), Complainant filed motions for
reconsideration more than two years and seven months after entry of an order denying
Complainant's motion for default judgment based on Respondent's failure to file a timely request
for hearing with the OALJ. The ALJ denied the motions for reconsideration on the ground that
they were untimely under Rules 59 and 60 of the Federal Rules of Civil Procedure, as
incorporated by 29 C.F.R. § 18.1(a). Complainant then filed a motion to reconsider the
denial of reconsideration on the ground that it erroneously applied the time limits stated in Rule
60(b) to an interlocutory order. The ALJ granted the motion, finding that there was clear legal
error in the application of Rules 59 and 60 to an interlocutory order.
Nonetheless, the ALJ found that the motions were still untimely under FRCP 54(b)
because it was filed after the presiding ALJ had rendered her recommended decision on the
merits. The ALJ also found that, assuming argendo that the motions were timely, the ends of
justice did not require reconsideration.
[N/E Digest X A 6]
AFFIRMATIVE DEFENSES; NARROW CONSTRUCTION
The ARB in Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998), in discussing the interpretation of
section 211(g) of the ERA, concluded that "[s]ince the ERA's remedial protection is to be
interpreted broadly, any affirmative defenses logically should be interpreted narrowly so as to
provide the act's protections to employees who work within the bounds of safety."
Id.@ 10.
[N/E Digest XI C 1]
PRETEXT; LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE
EMPLOYMENT ACTION; TRIER OF FACT'S DISBELIEF PERMITS INFERENCE OF
INTENTIONAL DISCRIMINATION
In Overall v. Tennessee Valley
Authority, 97-ERA-53 (ALJ Apr. 1, 1998), the ALJ issued a recommended
decision finding that Respondent's asserted legitimate, non-discriminatory reasons for
transferring, laying off, and refusing to recall Complainant were a pretext for discrimination
based on the ALJ's finding that Respondent's asserted reasons were false and associated with
such a degree of mendacity to establish a strong circumstantial case of intentional discrimination.
Citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), the ALJ noted
significant inconsistencies between the reasons given by Respondent and the facts, and the
"context of a concerted effort to conceal major safety hazzards by the use of defective ice
condenser screws . . . and [Complainant's] admitted zeal and competence in dealing with ice
condenser problems...." Slip op. at 34.
[N/E Digest XI C 2 a]
PRETEXT; FAILURE TO FOLLOW WELL-ESTABLISHED GRIEVANCE
RESOLUTION POLICY
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), evidence of improper motivation
on the part of Respondent was established by, inter alia, its failure to follow a
well-established policy of informal resolution of faculty grievances.
[N/E Digest XII A]
PROTECTED ACTIVITY AS CONTRIBUTING FACTOR TO ADVERSE
EMPLOYMENT ACTION
Under the ERA whistleblower provision, if a complainant successfully proves that his or
her protected activity was a "contributing factor" to the adverse action, the
respondent must then demonstrate "by clear and convincing evidence that it would have
taken the same unfavorable personnel action in the absence of such behavior." 42 U.S.C.
§5851(b)(3)(D). This is a lesser standard than the "significant,"
"motivating," "substantial," or "predominant" factor standard
sometimes articulated in case law under statutes prohibiting discrimination. See Procedures
for the Handling of Discrimination Complaints Under Federal Employee Protection
Statutes, 63 Fed. Reg. 6614, 6615 (1998) (to be codified at 29 C.F.R. §24.5(b)(2)).
[N/E Digest XIII B 18]
ADVERSE ACTION; MONETARY LOSS NOT REQUIRED; CONSIDERATION OF
SPECULATIVE MONETARY LOSS
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB held that the ERA
protects employees against a broad range of discriminatory adverse actions, including
non-monetary losses. Thus, although an associate professor was paid throughout his involuntary
leave of absence, he was subjected to adverse employment action by his removal from campus
and consequent negative publicity. The ARB wrote that "[d]enying an academician the
opportunity to teach and conduct research is a significant and compensable adverse
action." Id. @ 5. The ARB also took note of some minor direct monetary loss,
such as Complainant's inability to attend a professional meeting where he intended to promote a
textbook he was completing, and loss of remuneration for coaching a university-sponsored chess
club.
[N/E Digest XVI D 3 b]
COMPENSATORY DAMAGES; AWARD FOR DAMAGE TO PROFESSIONAL
REPUTATION
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB awarded Complainant
$40,000 in compensatory damages for loss of professional reputation where Complainant was
"physically escorted from his classroom by the campus police, in front of his students, and
then hustled through gathering up some personal effects from his office under the watchful eyes
of the police." Id. @ 8. In addition, Respondent exacerbated the situation when it
offered no timely information explaining its action, and when it did comment more than four
months later, told local press that Complainant had been removed because of his endangering
employees of the university, and that Complainant would have to have a psychological
examination before he would be permitted back on campus. The ARB found the extraordinary
and very public action against Complainant "surely had a negative impact on
[Complainant's] reputation among the students, faculty and staff at the school, and more
generally in the local community." Id. The ARB also considered stress caused by
Respondent's failure to follow the conciliation procedure contained in the Faculty Handbook.
The $40,000 award was determined by the ALJ based on a review of prior similar awards;
the ARB found the ALJ's reliance on this method to be "satisfactory." Complainant
had suffered little out-of-pocket loss.
[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF CONTINGENCY FEE ARRANGEMENT
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ARB noted that
"[c]ontingent fees are usually paid out of a complainant's award; however, the
environmental whistleblower statutes, as a matter of public policy, provide for fee shifting as a
means to encourage employees to report their employers' potentially endangering
practices." The Board contined:
The longstanding practice of the Department of
Labor is to employ the "lodestar method" to determine the proper amount of
attorney's fees awarded under the environmental whistleblower statutes. Lederhaus v.
Paschen & Midwest Inspection Service, Ltd., Case No. 91-ERA-13, Jan. 13, 1993,
Sec. Final Dec. and Order, slip op. at 3-4, citing City of Burlington v. Dague, 505
U.S. 557 (1992) (attorney's fees amounts may not be enhanced above the lodestar method
under federal fee shifting statutory provisions). The lodestar method requires multiplying
the number of hours reasonably expended by a reasonable hourly rate. Backen v.
Entergy Operations, Inc., ARB No. 97-021, ALJ Case No. 96-ERA-18, ARB Dec.,
Dec. 12, 1996, slip op. at 1 n.2, citing Hensley v. Eckerhart, 461 U.S. 424
(1983). As the Secretary held in Lederhaus: "Respondents are liable only
for reasonable attorney's fees no matter what Complainant may have contracted to pay his
attorney." Id. at 5.
Id. @ 9.
[N/E Digest XVI G 1]
OTHER RELIEF
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), the ALJ in her recommended
decision had directed release of the DOL decisions in the matter without comment to the press.
The ARB, although affirming the ALJ's finding on the merits, rejected this recommendation,
finding that it "has no authority to prohibit comment by Respondent, or its attorney, to the
media expressing their opinions of either the ALJ's Recommended Decision and Order or this
Final Decision and Order." Id. @ 9-10.
[N/E Digest XVII B 1 a]
SETTLEMENT PRIOR TO FILING OF WHISTLEBLOWER COMPLAINT; PROPER
AS GROUND FOR AFFIRMATIVE DEFENSE; HOWEVER, PROVISION BARRING ERA
COMPLAINT VOID AS AGAINST PUBLIC POLICY
In Khandelwal v. Southern California
Edison, 97-ERA-6 (ARB Mar. 31, 1998), Complainant executed a severance
agreement with Respondent, and accepted early retirement. Thereafter, he filed an ERA
whistleblower complaint alleging that the employment severance and several earlier personnel
actions were retaliatory and unlawful under the ERA. The ARB held that an employer named in
an ERA complaint should be allowed to raise, as an affirmative defense, an agreement reached
before the complaint was filed.
In the instant case, however, a provision of the severance agreement had the effect of
barring Complainant from filing an ERA whistleblower complaint, and the ARB concluded that
such a provision was void as against public policy, citing EEOC v. Cosmair, Inc., 821
F.2d 1085, 1088-89 (5th Cir. 1987) (age discrimination case). The Board wrote that "[t]he
public interest in the Department of Labor's administration of the ERA greatly outweighs the
public interest in dispute resolution through settlement." 97-ERA-6 @ 4.
The ARB also rejected the argument that Complainant ratified the void provision by
retaining the monetary consideration, holding that "provisions which are contrary to public
policy cannot be validated by ratification." Id. @ 5.
In Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998), Complainants' were found not to be
entitled to whistleblower protection under section 211 of the Energy Reorganization Act, 42
U.S.C. § 5851, because they deliberately caused a violation of the ERA, and therefore
were barred from protection by section 211(g).
In finding that section 211(g) applied, the ARB considered that Complainants acted
without direction from Respondent, and with reckless disregard for whether their acts would
cause a violation. Complainants had deliberately conducted two unauthorized evolutions, not
required by plant conditions, for the purpose of gathering data to resolve safety issues that
Complainants believed had not been adequately addressed by Respondent. The NRC in a Notice
of Violation, although acknowledging that the Complainants had exposed errors, found that the
unauthorized evolutions were a violation of the operator's license.
Employer's direction; implied authority
In regard to the finding that Complainants acted without direction, Complainants
acknowledged that Respondent had not expressly directed them to conduct the evolutions, but
argued that they acted under implied authority and therefore with the employer's direction. The
ARB rejected this argument, finding lack of support in Complainants' contention that the NRC
Notice of Violation had found implied authority or that Employer had acquiesced in similar
conduct in the past. The ARB also rejected Complainant's theory that the duty under their
operator's license "to protect the public and to assist in maintaining the plant at optimum
safety levels" authorized their obtaining hard data to highlight the problem. The ARB
found, rather, that there were other methods for bringing such concerns to higher managers or to
the NRC, and therefore the duty to protect the public did not constitute implied authority to
conduct the evolutions.
Meaning of "deliberately causes a violation"
The ARB discussed whether section 211(g) contains an element of willfulness --
concluding that it does -- and whether section 211(g) requires specific intent -- concluding that it
does not. Thus, the ARB held that "to establish a valid Section 211(g) defense, a
respondent must show that a complainant willfully or recklessly caused a violation of the ERA or
the Atomic Energy Act, that is, that the complainant acted with knowledge or with reckless
disregard of whether his or her act would cause a violation." 96-ERA-22 @ 13. The ARB
concluded that Complainants did not have actual knowledge that the evolutions would cause a
violation of the ERA or the Atomic Energy Act. Nonetheless, because Complainants could have
brought their concerns to higher level managers and to components of the NRC, the ARB
concluded that they had acted recklessly. The ARB also considered in making this conclusion
that, Complainants, if they sincerely believed that their actions were consistent with procedures
encouraged by Respondent, could have easily sought approval for the evolutions; that
Complainants were well aware of the danger; that the NRC, although acknowledging
Complainants' acts had a salutary effect, concluded that this effect did not excuse the risk taking;
and that "[n]uclear power is 'one of the most dangerous technologies man has invented.'
Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986) (Edwards,
concurring)." 96-ERA-22 @ 14.
[N/E Digest XIX]
SECTION 211(g) AFFIRMATIVE DEFENSE; BURDEN OF PROOF
Section 211(g) provides an affirmative defense on which the respondent bears the burden
of proof. Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998).
In Shannon v. Consolidated
Freightways, 96-STA-15 (ARB Apr. 15, 1998), the ARB adopted the ALJ's
finding that Respondent would have discharged Complainant absent any protected activity
because of a confrontation she had with a co-worker. The ARB emphasized that Respondent's
treatment of Complainant was consistent with the treatment of two other employees who had
confronted co-workers. Although Respondent had discharged Complainant on the basis of her
"overall work record," which included both protected and unprotected activity, the
ARB found that Complainant would have been discharged regardless of the protected activity
because of the confrontation.
[STAA Digest V A]
PROTECTED ACTIVITY; CONSIDERATION OF POSSIBLE PROTECTED
ACTIVITY OTHER THAN THAT EXPRESSLY ALLEGED BY COMPLAINANT
In Shannon v. Consolidated
Freightways, 96-STA-15 (ARB Apr. 15, 1998), the ALJ had considered
Complainant's protected activity exclusively in the terms alleged by Complainant. The ARB,
however, also considered other possible references to protected activity stated in Respondent's
"position of discharge" issued in relation to a local National Master Freight
Agreement hearing on the discharge.