WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

May 1, 1996

APA REQUIREMENTS; DECISION OF ALJ THAT DID NOT CONTAIN RULINGS ON PROPOSING FINDINGS OF FACT AND CONCLUSIONS OF LAW
[N/E Digest VIII A 2 c]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the Respondents contended that the ALJ violated the Administrative Procedure Act because he did not rule on their proposed findings of fact and conclusions of law. The Secretary found that the APA does not require a decision maker explicitly to accept or reject each parties' proposed findings and conclusions. See Lockert v. United States Dept. of Labor, 867 F.2d 513, 517 (9th Cir. 1989).

ARBITRATION DECISIONS; CONSIDERATION IN ERA PROCEEDINGS
[N/E Digest X P]

In Straub v. Arizona Public Service Co., 94-ERA-37 (Sec'y Apr. 15, 1996), the Secretary extended to the ERA the ruling of Roadway Express v. Brock, 830 F.2d 179, 181 (11th Cir. 1987), an STAA case, that pertinent arbitration decisions must be considered during the adjudication of a whistleblower complaint, with the probative weight to be accorded such decisions dependent on the adequacy provided the employee's rights in the arbitral proceeding.

ATTORNEY'S FEES; COSTS
[N/E Digest XVI E 3 a]

In calculating attorney's fees in whistleblower cases, the lodestar method is used, which requires multiplying the number of hours reasonably expended in pursuing the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). An attorney's fee petition must be based on records indicating date, time and duration necessary to accomplish the specific activity. Each activity should be detailed and clearly identifiable as pertaining to the case. Similarly, all claimed costs should be specifically identified, and if possible, a receipt appended. Sutherland v. Spray Systems Environmental, 95-CAA-1 (Sec'y Apr. 25, 1996).

BACK PAY; PERIOD COMPLAINANT COULD NOT WORK DUE TO JOB RELATED INJURY
[N/E Digest XVI C 2 c iv]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the Complainant was receiving temporary total disability between the period of his discharge by the Respondents and his starting a new job. The disability was unrelated to the employment discrimination. The Secretary held that even though the Complainant would not have been able to work during the back pay period, "[a]s ERA violators ... Respondents should not receive the benefit of owing no back pay due to [the Complainant's] work place injury." Slip op. at 5. Thus, Respondents were ordered to pay the amount of salary that is above the payments for temporary total disability; the amount paid for temporary total disability was compensation for lost wages, and therefore deductible from the back pay award. The Secretary noted, however, that the amount Complainant received as settlement for permanent partial disability was not deductible from the back pay award.

COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; PROFESSIONAL COUNSELING NOT A PREREQUISITE TO RECOVERY
[N/E Digest XVI D 3 c]

A complainant may be entitled to compensatory damages even though he or she did not seek professional counseling for emotional distress resulting from the adverse employment action. Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), citing Blackburn v. Metric Constructors, Inc., 86- ERA-4 (Sec'y Aug. 16, 1993).

COMPENSATORY DAMAGES; INTEREST NOT AVAILABLE
[N/E Digest XVI D 4 b]

Interest is not awardable on compensatory damages. Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995).

COMPENSATORY DAMAGES; FUTURE PSYCHIATRIC COUNSELING
[N/E Digest XVI D 3 c]

Where there was credible medical testimony that the Complainant may require future psychiatric counseling, but that therapeutic intervention was "not necessarily mandatory," the Secretary affirmed the ALJ's order that Respondent's pay future psychiatric fees up to $10,000, but placed an additional limitation that the Complainant present bills evidencing that he afforded himself of such counseling. Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995).

COMPENSATORY DAMAGES; MOVING EXPENSES
[N/E Digest XVI D 3 d]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand), the Deputy Secretary held that on remand the ALJ could "take evidence concerning whether [the Complainant] sustained expenses for relocating . . . that were not reimbursed by his new employer and that would have been reimbursed by Respondent if he had made the move to Florida when [a former subsidiary of Respondent that employed Complainant] was sold." Slip op. at 4.

CREDIBILITY DETERMINATIONS; NOT REVERSIBLE ERROR NOT TO MAKE INDIVIDUAL CREDIBILITY DETERMINATIONS WHERE THE VAST MAJORITY OF WITNESSES SUPPORTED THE ALJ'S CONCLUSIONS, THE COMPLAINANT'S TESTIMONY WAS NOT CREDIBLE, AND ALJ'S DECISION WAS EXTREMELY THOROUGH
[N/E Digest X E]

Noting that "[w]ithout exception, the findings of fact rendered by the ALJ reflect[ed] a thorough review of the record and a careful evaluation of the evidence" the Secretary in Straub v. Arizona Public Service Co., 94-ERA-37 (Sec'y Apr. 15, 1996), rejected the Complainant's position that the ALJ committed reversible error by not addressing the credibility of each of the witnesses who testified in the twenty- three days of testimony before the ALJ. The Secretary observed that Complainant's case rested heavily on his own, uncorroborated testimony, and that the ALJ had properly discredited the Complainant's testimony on several dispositive issues. The Secretary also observed that the vast majority of witnesses supported the ALJ's conclusions.

FABRICATION OF EVIDENCE; AVAILABLE SANCTIONS
[N/E Digest IX H]

In Straub v. Arizona Public Service Co., 94-ERA-37 (Sec'y Apr. 15, 1996), the ALJ stated that the record plainly showed that the Complainant fabricated evidence. Because the ALJ did not impose any sanctions, the Secretary found it unnecessary to review this finding except insofar as it pertained to credibility. The Secretary, however, observed that the ALJ could have imposed sanctions pursuant to 29 C.F.R. §§ 18.34(g)(3), 18.36 and 18.38, and "that criminal penalties are provided to protect against the obstruction of proceedings before Federal departments and agencies. See 18 U.S.C.A. § 1505 (West 1995); see, e.g., United States v. Sullivan, 618 F.2d 1290 (8th Cir. 1980)." Slip op. at 3 n.3.

NON-ECONOMIC REMEDIES; ORDER OF EXPUNGEMENT OF PERSONNEL RECORD SHOULD NOT BE OVERLY BROAD
[N/E Digest XVI G 2 a]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the Secretary modified the ALJ's order that the Respondents expunge all derogatory or negative information from the Complainant's personnel records, limiting the expungement to negative references relating to his discharge.

NON-ECONOMIC REMEDIES; REQUIRING LETTERS TO OTHERS TO CORRECT THE RECORD
[N/E Digest XVI G 2 b]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the ALJ ordered the Respondents to write to the NRC and an insurance carrier correcting earlier statements to those entities. The Respondents complained on appeal that this order was improper and humiliating. The Secretary found the ALJ's order to be a proper correction of the record.

REINSTATEMENT; CHANGE IN CORPORATE ENTITY
[N/E Digest XVI B 2]

Where the Complainant was employed by a subsidiary of a company that retained the liability on the Complainant's complaint when the subsidiary was sold, the company that retained the liability would have the obligation to reinstate the Complainant to a substantially similar position. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand).

REINSTATEMENT; MERE FACT OF FIRING DOES NOT ESTABLISH IMPOSSIBILITY OF NORMAL WORKING RELATIONSHIP
[N/E Digest XVI B 4]

The mere fact that the respondent fired a whistleblower does not establish the impossibility of a normal working relationship between the parties; reinstatement is the normal remedy for whistleblowers. See Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand).

REINSTATEMENT; BENEFITS AND PRIVILEGES; INCLUSION OF SPECIFIC ITEMS SUCH AS HOURS AND CHAIN OF COMMAND
[N/E Digest XVI B 8]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), Complainant's reinstatement was to include all benefits and privileges he formally enjoyed, including specifically "the same hours of work and not being required to report in any way to the Director of Nursing." Slip op. at 9.

SCOPE OF REMAND PROCEEDINGS; ALJ NOT TO DISCUSS VIOLATIONS WHERE REMAND LIMITED ISSUE STRICTLY TO DAMAGES
[N/E Digest XVI A 4]

In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept. 6, 1995), the Secretary noted that in an earlier decision he had held that either a complainant or a respondent has a right to de novo review by an ALJ -- but that where only the complainant requested review based on the Wage and Hour Administrator's decision not to order some of the relief sought, the respondent by not separately and timely requesting a hearing waived its right to a hearing on the issue of liability. Smith v. Littenberg, 92-ERA-52 (Sec'y June 30, 1993). On remand limited to remedies, the ALJ had discussed whether the Respondents had violated the ERA. The Secretary declined to adopt this discussion because he reiterated his finding that Respondents had conceded liability.

SCOPE OF REVIEW; APPROPRIATE TO FOCUS ON DISPOSITIVE ISSUE
[N/E Digest X P]

Where there is overwhelming evidence in support of the respondent's legitimate, nondiscriminatory reason for terminating the employment of the complainant, engaging in a detailed analysis of the other specific issues in the case is not necessary. See Straub v. Arizona Public Service Co., 94-ERA-37, slip op. at 9-10 (Sec'y Apr. 15, 1996).

SETTLEMENT; ENFORCEMENT; WHERE TO FILE COMPLAINT
[N/E Digest XVII G 4]

In Babel v. Federal Way Water & Sewer District, 95-CAA-23 (ALJ Apr. 26, 1996), the ALJ held that an appeal of the Associate Regional Solicitor's dismissal of the Complainant's request for enforcement of the settlement agreement should have been filed with the Secretary of Labor. See Orr v. Brown & Root, Inc., 85-ERA-6, slip op. at 2 (Sec'y Oct. 2, 1985) (settlement specifically enforceable in court where agreement was effected).

SETTLEMENT; CAA MAY BE VOLUNTARILY DISMISSED WITHOUT REVIEW OF UNDERLYING SETTLEMENT
[N/E Digest XVII C 3]

In Spears v. Envirite Corp., 95-CAA-17 (Sec'y Apr. 15, 1996), the Complainant notified the ALJ prior to the hearing that the matter had been settled and should be removed from the docket. The ALJ properly construed the notification as a notice of voluntary dismissal and issued a order recommending dismissal without prejudice.