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 & Environmental Digest III B 2 b]
TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN NOTICE OF SUSPENSION AND NOTICE OF TERMINATION FROM EMPLOYMENT

In Ross v. Florida Power & Light Co., 1996-ERA-36 (ARB Mar. 31, 1999), Complainant's complaint was timely if measured from the date of a letter terminating his employment, but not timely if measured from an earlier notice of suspension of access. Relying on English v. General Electric, 1985-ERA-2 (Under Sec'y Jan. 13, 1987), aff'd sub nom English v. Whitfield, 858 F.2d 957 (4th Cir. 1988), the ALJ concluded that Complainant had received final and unequivocal notice that an adverse action was being taken against him on the date of the notice of suspension.

The ARB disagreed, distinguishing English on the ground that in that case the first notice received by the complainant permanently barred her from laboratory in which she worked, and other secure areas of the facility. In the instant case, however, Complainant was only told that his access was suspended, and was given two methods for retaining employment. The ARB found that it was reasonable at that point for Complainant to think that it was still possible for him to regain his access to the secured area, and thus his position therefore, this was not final and unequivocal notice that he was being terminated. Accordingly, the complaint was found to be timely.

[Nuclear & Environmental Digest III C 1]
CONTINUING VIOLATION; IF TIMELY FILED COMPLAINT IS NOT PROVEN AS RETALIATORY DISCRIMINATION, THRESHOLD TEST FOR CONTINUING VIOLATION THEORY IS NOT MET

InHoltzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit applied the requirements for establishing a continuing violation stated in Bell v. Chesapeake & Ohio Ry. Co., 929 F.2d 220, 22 (6th Cir. 1991) to Complainant's environmental whistleblower complaints. The court noted that the Bell test requires a demonstration of a policy of discrimination, a continuing course of conduct, and present effects of past discrimination. A threshold requirement, however, is that the plaintiff must show a present violation. Thus, in Holtzclaw, the court considered first whether the only complaint that was filed within the 30-day filing period was supported by substantial evidence. Since the court affirmed the ARB's determination that it was not, the continuing violation test was not met.

[Nuclear & Environmental Digest VII A 2]
DEPOSITION OF COMPLAINANT; COMPLAINANT ALREADY DEPOSED ONCE

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Mar. 9, 1999), Complainant objected to a second notice of deposition on the ground, inter alia, that he had already been deposed once. Respondent sought the second deposition to ask questions about audiotapes secretly made by Complainant or Complainant's friend. Complainant further objected that Respondent already had notice of the existence of the tapes at the time of the first deposition, did not request copies of the tapes until after the deposition, and therefore waived its right to depose him about the contents of the tapes. The ALJ found Complainant's argument unpersuasive, noting that 29 C.F.R. § 18.13 expressly provides that unless the ALJ orders otherwise, the frequency or sequence of depositions is not limited. The ALJ also took into consideration that due to technical problems, the copying of the tapes had taken a long time.

[Nuclear & Environmental Digest VII A 2]
DISCOVERY; REQUEST FOR ALL DOCUMENTS RELATING TO WHISTLEBLOWERS

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Mar. 19, 1999), the ALJ found that the following discovery request was overly broad and burdensome: "With the exception of financial data, identify and produce all documents in your possession, custody or control pertaining to whistleblower(s) who were [Respondent's] employees for any time between January 1, 1992 and the present." Thus, the ALJ ordered that "all documents" shall be interpreted to mean a) documents contained in the personnel file; b) documents maintained by the Human Resources Department relating to whistleblower activities; c) all other correspondence and memos maintained by the Human Resources Department relating to whistleblowers; d) memos reflecting in-house investigations into whistleblower complaints, providing that said documents are not privileged; and e) the EAP file (i.e., psychiatric evaluations of employees).

The ALJ permitted Respondent to withhold a) settlement agreements; and b) information covered by the attorney client or attorney work product privileges, pursuant to Fed. R. Civ. P. 26(b)(5). To protect the privacy of the employee, the ALJ ordered that information disclosed under this discovery request would be governed by the terms of an earlier protective order.

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER; DEPONENT PHYSICALLY ILL

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Mar. 16, 1999), the ALJ issued a protective order pursuant to 29 C.F.R. § 18.15(a) to excuse an employee of Respondent from being deposed, where Respondent produced a letter from the deponent's physician opining that based on the employee's current medical conditions, it is not in his best medical interest to be deposed.

[Nuclear & Environmental Digest VII B 4]
SUBPOENA DUCES TECUM SERVED ON PARTY

In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Mar. 9, 1999), Respondent served a subpoena duces tecum on Complainant. Complainant objected, arguing that a subpoena duces tecum is an inappropriate method for obtaining a document from a party. The ALJ found that a party had the option of proceeding under either 29 C.F.R. § 18.24 (subpoenas) or § 18.19 (production of documents) in compelling the production of documents by an opposing party, but that the regulations must be construed in pari material. The ALJ concluded that the specific terms of section 18.19 should govern the general terms of section 18.24 in determining the proper scope of a subpoena duces tecum and the period of time in which a party has to respond to such.

[Nuclear & Environmental Digest VII C 1]
MOTION FOR SUMMARY DECISION; IF SUPPORTED BY EVIDENCE, PARTY OPPOSING MOTION MUST SUBMIT EVIDENCE TO CONTROVERT

In Williams v. Lockheed Martin Corp., 1998-ERA-40 and 42 (ALJ Mar. 22, 1999), the ALJ found that once a defendant submits exhibits, affidavits, depositions, and a memorandum of law to support a motion for summary judgment, and the plaintiff fails to submit evidence in any form to controvert the motion (i.e., evidence of specific facts demonstrating the existence of a genuine issue for trial), the defendant's evidence must be taken as true. The ALJ noted the existence of discovery disputes, but observed that he had conducted a discovery conference in which he had narrowed discovery to relevant issues, and concluded that Respondent's discovery responses had been adequate. Therefore, summary decision was not prohibited by 29 C.F.R. § 18.40(d).

[Nuclear & Environmental Digest VIII B 1 d]
LEGITIMACY OF THE ARB

In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the court rejected the contention that the ARB had been created in violation of the Appointments Clause and the Presentment Clause of the federal Constitution, citing Varnadore v. Secretary of Labor, 141 F.3d 625, 632 (6th Cir. 1998).

[Nuclear & Environmental Digest IX B 2]
FORM OF MOTION BEFORE ARB

In Moore v. U.S. Dept. of Energy, 1998-CAA-16 (ARB Apr. 1, 1998), the ARB placed counsel on notice that in the future it will require motions to be appropriately captioned, titled and formatted, consistent with customary practice before a court, citing, as an example, Fed. R. Civ. P. 7(b).

[Nuclear & Environmental Digest IX D]
SUPPLEMENTAL EVIDENCE PRESENTED TO COURT OF APPEALS

In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit declined to consider documents submitted by Complainant following oral argument, finding that the largest part of the material was not part of the administrative record, and that some of the documents were simply irrelevant.

[Nuclear & Environmental Digest IX I]
EXTENSION OF TIME; FAILURE TO REQUEST TIMELY

In Balog v. Med-Safe Systems, Inc., 1995-TSC-9 (ARB Apr. 2, 1999), the ARB denied Complainant's attorney's request for an extension of time for the filing of an initial brief on review where a prior extension had been granted, and the attorney did not request the second extension until the day following the end of the originally extended briefing period. The ARB indicated that the ruling did not prejudice the attorney's opportunity to file a reply brief as permitted by the ARB's briefing orders (i.e., limited to issues raised in Respondent's initial brief).

Compare Schulman v. Clean Harbors Environmental Services, Inc., 1998-STA-24 (ARB Mar. 8, 1999) (ARB reversed earlier order denying Complainant's request for a second extension of time where Complainant was able to establish that he had, in fact, filed a timely second request).

[Nuclear & Environmental Digest IX M 2]
FRIVOLOUS COMPLAINT; ALJ'S LIMITED ABILITY TO SANCTION

In Williams v. Lockheed Martin Corp., 1998-ERA-40 and 42 (ALJ Mar. 22, 1999), the ALJ, after granting summary decision in favor of Respondents, concluded that the complaints were "frivolous in the worst sense of the word" -- that Complainants' counsel had concocted allegations that were patently false. The ALJ noted that he had spent many hours attempting to manage the case, including reams of paper relating to discovery, but expressed frustration in finding a meaningful sanction for Complainant's counsel's "unsavory pursuit of the complaints...." The ALJ ordered Complainant's counsel suspended from further participation before OALJ in the case pursuant to 29 C.F.R. § 18.36, although he noted that such an action was a moot point once the motion for summary decision was granted.

[Nuclear & Environmental Digest XI]
BURDENS OF PROOF; PRIMA FACIE CASE NEED NOT BE ESTABLISHED BY PREPONDERANCE OF THE EVIDENCE; HOWEVER, ONCE CASE FULLY TRIED ON THE MERITS, PRIMA FACIE CASE ANALYSIS IS ANALYTICALLY UNIMPORTANT

In Adornetto v. Perry Nuclear Power Plant, 1997-ERA-16 (ARB Mar. 31, 1999), the ARB held that the ALJ erred in stating that the Complainant must establish a prima facie case by a preponderance of the evidence, and that in response to the prima facie case, the Respondent must establish by clear and convincing evidence that it had a legitimate reason for its action.

Rather, "there is no requirement that a complainant establish a prima facie case by a preponderance of the evidence; a complainant only is required to present evidence sufficient to raise an inference of discriminatory motivation to establish a prima facie case. Furthermore, Respondent only has the burden at this point of articulating a legitimate, nondiscriminatory reason for the adverse action. Complainant must prove by a preponderance of the evidence that complainant's protected conduct was a contributing factor in the adverse action taken. If complainant carries that burden, Respondent can avoid liability by establishing by clear and convincing evidence that it would have taken the same action even in the absence of protected activity. 42 U.S.C. § 5851(b)(3)(C) and (D)." Slip op. at 4.

Further, once a case has been tried fully on the merits, it no longer serves any analytical purpose to address and resolve the question of whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Carroll v. Bechtel Power Corp., 1991-ERA- 46 slip op. at 9-11 (Sec'y, Feb. 15, 1995), aff'd Carroll v. U.S. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996).

[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE, NONDISCRIMINATORY REASONS FOR ADVERSE EMPLOYMENT ACTION; RESTRUCTURING AND LAYOFFS

In Adornetto v. Perry Nuclear Power Plant, 1997-ERA-16 (ARB Mar. 31, 1999), the only evidence of a causal relation between Complainant's protected activity and his layoff was temporal proximity. Respondent presented credible evidence that the decision to lay off Complainant was the result of a general, long-term, company-wide restructuring and downsizing.

The ARB held that selection of Complainant was based on a legitimate, nondiscriminatory reason his lower performance rating in comparison with other employees in his unit. Complainant had been ranked last in his unit in the most recent annual forced rankings of employees, with similar low rankings in earlier years. The ARB also found legitimate, nondiscriminatory reasons in that Complainant was not highly motivated, spent a lot of time in non-work related conversations, and had to be checked constantly to make sure he was completing his assignments.

[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; REORGANIZATION OF HIRING PRACTICES

In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held that Respondent stated a legitimate nondiscriminatory reason for not renewing Complainant's employment agreement based on its desire to reorganize its hiring practices. Complainant was a federal EPA employee who had been "loaned" for a period of two years to the Commonwealth of Kentucky under an Intergovernmental Personnel Act agreement. Kentucky declined to renew Complainant's contract because, inter alia, there was a foreshadowing of a change in administration in the state government, and therefore there was a concern that federal/state employment agreements should not be used for continuing projects and initiatives; rather such positions should be filed by state employees.

[Nuclear & Environmental Digest XI B 2 b iv]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; PSYCHOLOGICAL FITNESS FOR UNESCORTED ACCESS

In Ross v. Florida Power & Light Co., 1996-ERA-36 (ARB Mar. 31, 1999), the ARB found that Respondent conclusively established that it suspended Complainant for a legitimate, nondiscriminatory reason complaints from co-workers because of troubling behavior (veiled threats to kill people), and that it terminated Complainant because he had failed to find another position at the plant or clear the bar placed on his access to the secured area of the facility.

[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; COMPLAINANT'S EXPRESSION OF PERSONAL IDEAS AS STANCES OF EMPLOYING AGENCY

In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held that Respondent, a state agency, stated a legitimate nondiscriminatory reason for not renewing Complainant's employment agreement where Complainant on at least three occasions had embarrassed the agency with personal positions fervently expressed by Complainant as departmental stances. The court found that the decision not to renew Complainant's employment agreement was not a muzzling of First Amendment freedoms, but only a curbing of Complainant's effort to portray his own ideas as official positions of the state agency.

[Nuclear & Environmental Digest XIII B 18]
ADVERSE ACTION

In Moore v. U.S. Dept. of Energy, 1998-CAA-16 (ALJ Feb. 23, 1999), the ALJ recommended summary judgment in favor of Respondent where Complainant's complaint was premised on the contention that certain videotapes constituted a "gag order," but the ALJ, after viewing the tapes, found that a reasonable person could not have concluded that the tapes included remarks that were hostile, threatening, chilling, gagging or adverse. Further, Complainant was not at the meeting at which the tapes were made, having been on leave for several months, and only viewed the tapes on his own initiative.

[Nuclear & Environmental Digest XIV B 2]
EMPLOYEE; COMMON LAW AGENCY

In Plumlee v. Dow Chemical Co., 1998-TSC-8 and 9 (ALJ Feb. 25, 1999), the ALJ recommended dismissal on summary decision of one Respondent -- a contract delivery system that supplied contract drivers to businesses -- where Complainant failed to present sufficient evidence of employee/employer relationship under the common law agency doctrine stated in Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. 1344 (1992).

[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; INADEQUATE SPECIFICITY

In Charvat v. Eastern Ohio Regional Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ disallowed hours claimed in an attorney's fee petition where the petition did not contain a description specific enough to determine whether the work was justified or connected with the instant proceeding.

[Nuclear & Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; DETERMINATION OF HOURLY RATE

In Charvat v. Eastern Ohio Regional Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ used the parties' exhibits, Altman & Weil's 1994 Survey of Economics, and factors such as the location of the attorney's firm, years of experience, expertise, the complexity of the issues presented in the case and the success on those issues, and fee awards made in other cases before the agency, to determine reasonable hourly rates.

[Nuclear & Environmental Digest XVI E 3 b]
ATTORNEY'S FEES; CONTINGENCY FEE ARRANGEMENT NOT RELEVANT

In the ALJ's recommended decision in Charvat v. Eastern Ohio Regional Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), Respondent argued that a contingency fee arrangement between Complainant and his counsel should be used as a cap on any award of fees to Complainant's counsel. Complainant's counsel argued, in contrast, that such an arrangement should be used to enhance an award. The ALJ found that both arguments were wrong. The only basis for an attorney's fee award is the lodestar method. The ALJ distinguished McCafferty v. Centerior Energy, 1996-ERA-6 (ARB Sept. 24, 1997), because in that case what was at issue was a fee cap arrangement rather than a contingency fee arrangement.

[Nuclear & Environmental Digest XVI E 3 d v]
ATTORNEY'S FEES; MORE THAN ONE ATTORNEY ATTENDING DEPOSITION; MORE THAN ONE ATTORNEY ATTENDING HEARING

In Charvat v. Eastern Ohio Regional Wastwater Authority, 1996-ERA-37 (ALJ Mar. 3, 1999), the ALJ found that more than one attorney attending a deposition is excessive, and reduced attorney fees awards accordingly. The ALJ, however, declined Respondent's request to reduce the award because each of Complainant's attorneys attended the hearing, but did not all examine witnesses. The ALJ found that the attorneys had worked as a team at the hearing.

[Nuclear & Environmental Digest XVII A]
SETTLEMENTS OF CAA, TSCA AND SDWA COMPLAINTS REACHED DURING INVESTIGATIVE STAGE MUST BE REVIEWED AND APPROVED BY THE SECRETARY OF LABOR

In Beliveau v. U.S. Dept. of Labor, No. 98-1786 (1st Cir. Mar. 10, 1999), the First Circuit reversed the ARB's ruling in Beliveau v. Naval Undersea Warfare Center, 1997-SDW-6 (ARB June 26, 1998), that Secretarial approval of a settlement of whistleblower complaint under the CAA, TSCA, and SDWA is required only "where a settlement is reached between the parties after an appeal of a Department of Labor investigative agency (Wage and Hour or OSHA) finding to the Office of Administrative Law Judges, or where a settlement is entered after issuance of an ALJ's recommended order and such matter is before the Board for review." The First Circuit held that settlements reached during the investigative stage must also be reviewed and approved by the Secretary.

[Nuclear & Environmental Digest XX B 1]
DOE ISSUES INTERIM FINAL RULE FOR DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

On March 15, 1999, the Department of Energy issued an interim final rule on DOE's contractor employee protection program at 10 C.F.R. Part 708. 64 Fed. Reg. 12862-01 (Mar. 15, 1999). The rule covers more than just section ERA § 211(a), 42 U.S.C. § 5851(a), types of activities, and includes, for example, matters such as those that would be covered by section 11(c) of the OSH Act and OSHA workplace safety regulations. Compare 10 C.F.R. §§ 708.5 through 708.7 with 29 C.F.R. § 1977.12(b)(2).

DOE's interim final rule excludes from coverage employee complaints that are submitted for review under DOL regulations found at 29 C.F.R. Part 24, to avoid a situation where an employee could simultaneously pursue the same whistleblower complaint in more than one forum. See 10 C.F.R. §§ 708.4(c), 708.15(a), 708.15(d), 708.17(c)(3). The rule, however, recognizes an exception when the prior complaint under 29 C.F.R. Part 24 is dismissed for lack of jurisdiction by the DOL. See 10 C.F.R. § 708.15(a).

[Nuclear & Environmental Digest XX B 7]
NRC ISSUES PROPOSED RULE TO SET CRITERIA FOR DISPOSAL OF HIGH LEVEL RADIOACTIVE WASTES AT YUCCA MOUNTAIN, NEVADA

On February 22, 1999, the Nuclear Regulatory Commission issued a proposed rule to set licensing criteria for the disposal of spent nuclear fuel and high-level radioactive wastes at the proposed geologic repository at Yucca Mountain, Nevada. 64 Fed. Reg. 8640-01 (Feb. 22, 1999). Included in the proposed rule is a ERA § 211(a), 42 U.S.C. § 5851(a), type employee protection provision. Such discrimination complaints would be administratively processed by the Department of Labor. See proposed 10 C.F.R. § 63.9.

[Nuclear & Environmental Digest XXI A]
COLLATERAL ESTOPPEL; PRIOR RULINGS RELATING TO SAME ORIGINAL COMPLAINT

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, 1999-CAA-4 (ALJ Mar. 10, 1999), the ALJ found that collateral estoppel is applicable in administrative adjudications, and found that Complainant's third complaint, was collaterally estopped by prior administrative adjudications of his first, second, and fourth complaints. In applying the test for application of collateral estoppel, the ALJ first found that the issues were identical. Although Complainant had alleged a new fact -- the existence of a DOE Office of Hearings and Appeals determination relating his claim that a denial of a FOIA fee waiver was retaliatory -- the ALJ held that merely alleging a new fact does not constitute a new and distinct cause of action. Second, the ALJ found that the issues had been actually litigated -- that is, contested by the parties and submitted for determination by the court [each of the prior decisions had been summary decisions]. Finally, the ALJ found that the determination of the issues had been a critical and necessary part of the earlier judgments. Thus, the ALJ concluded that collateral estoppel applied. He went on to find, in the alternative, that the complaint failed to prove essential elements of whistleblower causes of action.