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.

[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)).

Van Der Meer v. Western Kentucky University, 95-ERA-38 (ARB Apr. 20, 1998).

[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.

[N/E Digest XIX]
SECTION 211(g) AFFIRMATIVE DEFENSE

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).

[STAA Digest IV D 3]
DUAL MOTIVE; DISCHARGE OVER CONFRONTATION WITH CO-WORKER; CONSISTENCY WITH TREATMENT OF CONFRONTATIONS BY OTHER EMPLOYEES

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.