WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
June 5, 1997
This newsletter covers materials that became available during the period from
May 12, 1997 to June 4, 1997.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[N/E Digest VII A 2]
INTERVIEW STATEMENTS; REQUEST FOR ORDER DIRECTING WAGE AND
HOUR TO PRODUCE
In Verdone v. Northeast
Utilities, 97-ERA-27, 28, 29 and 30 (ALJ May 9, 1997), the ALJ declined to order
the Wage and Hour Division to produce Complainants' interview statements submitted during the
investigation of the matter. Respondents had filed a FOIA request with Wage and Hour for the
statements, but Wage and Hour declined to disclose the documents, citing FOIA exemption
7(c) (unwarranted invasion of personal privacy). The ALJ noted that appeals of FOIA requests
are resolved in another forum (appeal to the Solicitor of Labor), and that he would not over step
judicial boundaries to order Wage and Hour to produce the documents.
In addition, the ALJ held, even assuming he could order Complainants' to waive their
privacy interest in the statements, it was not necessary under the present posture of the case in
which there was a pending motion for summary decision that did not require evidence of the
statements for resolution. The ALJ, however, did not encourage or prohibit an attempt at
discovery of the statements.
[N/E Digest IX M 2]
DISQUALIFICATION OF COUNSEL; COUNSEL POTENTIAL WITNESS ON
MATERIAL AND IMPORTANT ISSUE
In Berkman v. U.S. Coast Guard
Academy, 97-CAA-2 and 9 (ALJ Apr. 9, 1997), the ALJ granted Complainant's
motion to disqualify Respondent's counsel, where it was clear that Complainant intended to call
Respondent's counsel as a witness and that the expected interrogation would be material and
important to the case. The ALJ took into consideration that the motion to disqualify had come
early in the proceedings and that only limited discovery had been done.
[N/E Digest XI A 2 d]
DIRECT EVIDENCE OF ANIMUS; COMPLAINANT MUST STILL ESTABLISH
CAUSAL CONNECTION TO ADVERSE EMPLOYMENT ACTION
The fact that Complainant's supervisor candidly acknowledged that he would prefer not to
supervise an employee who, without authorization, gave business documents to a reporter and to
Congress, and that he suspected that Complainant had participated in such activities, does not
end the inquiry in a DOL ERA whistleblower proceeding. Rather, the complainant has the
burden to establish that the supervisor's animus against supervising whistleblowers was a
contributing factor in an adverse action. Trimmer
v. Los Alamos National Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8,
1997).
[N/E Digest XIII B 18]
ADVERSE ACTION; RELEVANCE OF COMPLAINANT'S LACK OF MOTIVATION
IN
SEEKING SUITABLE ALTERNATIVE EMPLOYMENT
In considering whether Respondent engaged in adverse employment action in the way it
undertook to find suitable alternative employment for Complainant, the Board in Trimmer v. Los Alamos National
Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997), took into
consideration Complainant's passive role despite the job coordinator's suggestions that he needed
to network and actively seek job leads.
[STAA Digest IX A 4 a]
REINSTATEMENT; RESPONDENT WHO REFUSES TO COMPLY PRIOR TO
ENFORCEMENT BY COURT OF APPEALS
In Clifton v. United Parcel
Service, 94-STA-16 (ARB May 14, 1997), the ALJ had recommended in a
January 15, 1997 decision on remand that Complainant be awarded six months of front pay
because
Respondent had ignored the Secretary of Labor's May 5, 1995 order of reinstatement. The
Board, however, found that the record did not reflect a level of hostility between
Complainant and Respondent sufficient to require substitution of the reinstatement order with an
award of front pay, "at this time". The ARB noted that "there is no
reason to assume that [Respondent] would not comply with a final order once it is issued by the
Secretary of Labor, if enforced by the Court of Appeals." The Board reminded Respondent
"that although it has appealed the Secretary's May 5, 1995 order to the United States Court
of Appeals for the Sixth Circuit, such an appeal does not automatically stay the Secretary's order
of reinstatement." Slip op. at 2 n.1.
See also Dutkiewicz v. Clean Harbors
Environmental Services, Inc., 95-STA-34 (ARB May 15, 1997)(order), in which
the ARB ordered Complainant to respond to Respondent's motion to stay reinstatement.
Respondent argued that if the Board determines that Complainant should be reinstated, he would
be made whole by an award of back pay that lasts until he is reinstated. Respondent pointed out
that Complainant is now living and working in another state, and argued that if Complainant
should ultimately not prevail before the Board, he made may be faced with another termination
after surrendering other employment and relocating. Thus, the Board noted that a stay of
reinstatement may well be in Complainant's best interest. (Motion still pending)
[STAA Digest IX B 2 b ii]
BACK PAY; PROMOTION; USE OF REPRESENTATIVE EMPLOYEE TO
DETERMINE THAT COMPLAINANT WOULD HAVE BID ON AND RECEIVED
PROMOTION
In Clifton v. United Parcel
Service, 94-STA-16 (ARB May 14, 1997), Complainant's back pay award was
adjusted for a promotion based on the experience of a representative employee: the fellow
employee who was ranked in seniority just below Complainant at the time Complainant was
fired. That representative employee was given a full-time position after Complainant was
terminated.
The record indicated that Complainant had bid on three positions in prior years, and had
held two part-time positions at the time he was fired. The Board concluded that this evidence
proved Complainant's desire to obtain full-time employment and that he would have bid on the
position awarded to the representative employee.
The record also indicated that Respondent had a collective bargaining agreement with the
Teamsters Union, which made positions available to employees according to seniority.
Respondent did not offer any evidence that there were circumstances where the most senior
employee bidding on the position did not receive the job. Thus, the Board concluded that
Complainant would have been awarded the job had he not been wrongfully discharged.
[STAA Digest IX B 3 b]
BACK PAY; DUTY TO MITIGATE; JOB NOT SUBSTANTIALLY EQUIVALENT TO
FORMER POSITION
"Where an employer is found to have violated the STAA and the claimant is found
to be entitled to an offer of reinstatement to his former position with back pay, the claimant does
not breach the obligation to mitigate damages by declining a job that is not substantially
equivalent to his or her former position." Clifton v. United Parcel Service,
94-STA-16, slip op. at 3-4 (ARB May 14, 1997) (citation omitted).
[STAA Digest XI B 2]
DISMISSAL FOR FAILURE TO RESPOND TO PREHEARING ORDERS
In Somhorst v. Silver Eagle
Transport, 97-STA-4 (ARB May 13, 1997), the ALJ had issued, via certified
mail, an order to show cause why the matter should not be dismissed because of Complainant's
non-compliance with prehearing orders. When the certified mail was returned to the ALJ with a
notation by the U.S. Postal Service that the document was unclaimed despite two notifications of
attempted delivery, the ALJ recommended dismissal. The ARB issued a second order to show
cause. When neither Complainant nor Respondent responded, the ARB adopted the ALJ's order
of dismissal.