Office of Administrative Law Judges
United States Department of Labor
July 5, 1996
This newsletter covers the materials that became available during
the period from June 3, 1996 to July 3, 1996.
ADVERSE EMPLOYMENT ACTION; REMARKS ABOUT STATUS OF CASE
[N/E Digest XIII B 18]
In Varnadore v. Oak
Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board affirmed the ALJ's recommendation of summary decision
concerning the Complainant's complaint that the Complainant's
former Division Director had discussed the status of a pending
whistleblower complaint at a staff meeting. The Respondent had
submitted an affidavit from the Division Director in which he
indicated that in response to a question he only stated that
briefs had been submitted, a decision was expected in
approximately one month, and that the decision would ultimately
be made on review by the Secretary of Labor.
The Complainant's response to this affidavit consisted solely
of argument, and no supporting affidavits or other evidentiary
support. The Board observed that a "non-moving party may
not defend against a motion for summary judgment with 'mere
allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for
trial.'" Slip op. at 18, quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). The Board also held
that "it would be preposterous to conclude that a reference
by [the Division Director] to the status of [the pending
whistleblower complaint] constitutes retaliatory adverse
action". The Board noted in this regard the ALJ's finding
that the Complainant was not working in this division, did not
attend the meeting, and did not suffer any adverse employment
status or work environment as a result of the remark. Slip op.
at 18-19.
ADVERSE EMPLOYMENT ACTION; NARRATIVE VERSUS ULTIMATE
RATING
[N/E Digest XIII B 17]
The narrative contained in a performance appraisal may
constitute adverse action, even if the ultimate rating does not.
Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and
94-CAA-2 and 3, slip op. at 32 (ARB June
14, 1996), citing Bassett v. Niagara Mohawk Power Corp.,
85-ERA-34, slip op. at 4 (Sec'y Sept. 28, 1993).
ADVERSE EMPLOYMENT ACTION; PRESS RELEASE
[N/E Digest XIII B 18]
In Varnadore v. Oak
Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
one Respondent issued a press release following the ALJ's
issuance of a recommended decision regarding Complainant's
original complaint. The press release characterized the award as
modest, noted disagreement with the ALJ's finding of retaliation,
expressed an intent to address the matter with the Secretary of
Labor, and noted that the Secretary issues the final order. The
Complainant characterized the press release as "callous and
remorseless", with a "retaliatory and condescending
statement that the award was 'modest.'" The Board agreed
with the ALJ that reference to a "modest" award was not
retaliatory where the recommended award was $30,000, but the
Complainant had sought $11 million. The Board noted that it was
more important that the press release caused the Complainant no
tangible job detriment nor did it contribute to creation of a
hostile work environment. The Board quoted, inter alia,
the ALJ's observation that the press release "was not
physically threatening, humiliating, or even an offensive
utterance." Slip op. at 20, quoting Varnadore v. Oak
Ridge National Laboratory, 94-CAA-3, slip op. at 9 (ALJ Apr.
28, 1994)("Varnadore II").
AFTER ACQUIRED EVIDENCE; DOES NOT DEFEAT COMPLAINT, BUT IS
RELEVANT TO DAMAGES
[N/E Digest XI F]
Evidence of legitimate grounds for termination of employment
of a complainant that is acquired by the employer after the
decision to terminate does not defeat a discrimination complaint.
Such evidence, however, is relevant to the issue of damages.
Timmons v. Mattingly
Testing Services, 95-ERA-40
(ARB June 21, 1996), citing McKennon v. Nashville Banner
Publishing Co., 115 S.Ct. 879 (1995) and Smith and
Fitzpatrick v. Tennessee Valley Authority, 89-ERA-12, slip
op. at 2-6 (Sec'y May 17, 1995).
BURDEN OF PROOF IN ERA AFTER 1992 AMENDMENTS IN TERMINATION
OF EMPLOYMENT CASE; CLEAR AND CONVINCING EVIDENCE STANDARD
[N/E Digest XI D 1]
To prevail, an ERA whistleblower complainant must establish,
by a preponderance of the evidence, that the respondent
terminated his or her employment, at least in part, based on the
complainant's protected activity. Pursuant to the 1992
amendments to the ERA, if the complainant carries this burden,
the respondent may avoid liability only by establishing, by clear
and convincing evidence, that he or she would have been
terminated in the absence of the protected activity. See
42 U.S.C. § 5851(b)(3)(D); Johnson v. Bechtel Const.
Co., 95-ERA-11, slip op. at 2 (Sec'y Sept. 28, 1995);
Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7,
1995), appeal docketedDysert v. Sec'y of Labor,
No. 95-3298 (11th Cir. Sept. 28, 1995); Yule v. Burns Int'l
Security Serv., 93-ERA-12, slip op. at 7-13 (Sec'y May 24,
1995); see generally Grogan v. Garner, 498 U.S. 279 (1991)
(discussing higher clear and convincing evidence standard in
comparison with preponderance of evidence standard in Section
523(a) of Bankruptcy Code case). Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996).
CAUSATION; ADVERSE PERFORMANCE EVALUATION AND RETALIATORY
MOTIVE; ERROR TO BASE FINDING OF RETALIATION ON FINDING THAT
SUPERVISORS WERE TOO EMOTIONALLY INVOLVED IN DISPUTE TO RENDER
FAIR EVALUATION
[N/E Digest XI E 14]
In Varnadore v. Oak
Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
an ALJ concluded in regard to a performance evaluation given to
the Complainant during an "emotionally charged" period
resulting from related whistleblower litigation, that the
supervisors who prepared the evaluation could not be impartial in
supervising and rating the Complainant's job performance. Thus,
the ALJ found that the performance evaluation was suspect, and
that maintenance of that evaluation in the Complainant's
personnel file was unfair and prejudicial.
The Board found that the ALJ erred in focusing on this
concern -- that whether it was possible for the supervisors to
have neutral or impartial feeling toward the Complainant was
irrelevant. Rather, the relevant question is whether retaliatory
animus in fact infected the performance evaluation; if
not, there was no retaliation regardless of what the supervisors
felt about the Complainant.
The Board stated that "[t]he most useful measure of
whether a performance appraisal was given out of retaliatory
motive is whether it is fair and accurate description of an
employee's job performance." Slip op. at 33 (citations and
footnote omitted) The Board noted that "[o]f course, the
fact that an evaluation is not fair or accurate does not
automatically mean that it was motivated by animus, but it would
be evidence from which such animus appropriately could be
inferred...." Slip op. at 33 n.26. The Board then reviewed
the Complainant's testimony, the uncontroverted testimony of the
supervisors, and the ALJ's finding, and concluded that the
performance appraisal was fair and accurate and not motivated by
retaliatory animus.
EMPLOYER; INDIVIDUALS AS: CABINET SECRETARY; FORMER HEAD OF
OAA; SUPERVISOR
[N/E Digest XIV B 4 j]
In Varnadore v. Oak
Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board held that the Secretary of Energy was not the
Complainant's employer within the meaning of the ERA. Citing
Stevenson v. National Aeronautics and Space
Administration, 94-TSC-5 (Sec'y July 3, 1995) (individuals
are not subject to suit under the TSCA and CAA).
Similarly, the Board held that a complaint lodged against the
former head of the Office of Administrative Appeals, U.S. Dept.
of Labor, should be dismissed because she was not the
Complainant's employer. Her only connection to the Complainant
was that she was alleged to have been employed by one of the
Respondents to advise it on the defense of the complaint brought
by the Complainant.
In addition, the Complainant's supervisor was dismissed as a
party where the Complainant did not allege that the supervisor
was his employer.
EVIDENCE; LINE OF QUESTIONING ABOUT SUPERVISOR'S "BRAIN
CHEMISTRY"
[N/E Digest XI E 14]
In Varnadore v. Oak
Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board held that the ALJ properly terminated the Complainant's
attempt to pursue a line of questioning about his supervisors'
"brain chemistry" in regard to Complainant's
performance evaluation. The Board noted that the best test of
whether the supervisors' testimony that they evaluated the
Complainant impartially was credible was the performance
evaluation itself, which was both accurate and fair. Slip op. at
30-31 n. 24.
[Editor's note: But seeTimmons v. Mattingly
Testing Services, 95-ERA-40, slip op. at 14 n.9 (ARB
June
21, 1996) (evidence concerning actions taken by Respondent in
response to NRC investigation prior to termination of
Complainant's employment should be admitted into evidence because
it is relevant to mindset of Respondent's deciding officials)]
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996), the
Board reviewed principles governing the evaluation of evidence of
retaliatory intent in ERA whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1
and 3 (ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry")]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
EXPEDITED HEARINGS; ALJ ERRS IN LIMITING DISCOVERY OR LENGTH
OF HEARING IN ORDER TO COMPLY WITH STATUTORY OR REGULATORY TIME
LIMITATIONS, WHICH ARE DIRECTORY ONLY
[N/E Digest VII A 2, VII D 1, VII D 2 and IX I]
In Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996), the
Board severely criticized an ALJ who had limited discovery and
the length of the hearing to attempt to comply with statutory and
regulatory time limits. The Board noted that the time limits
were directory only, and found that the ALJ improperly limited
the parties' pre-hearing preparation and the presentation of
evidence at hearing. Excerpts from the Board's discussion
follow:
The statute and regulations do contain provisions concerning
the time within which the Department of Labor's
investigation and adjudication of ERA complaints should be
completed.... Such provisions have been construed as
directory, rather than mandatory or jurisdictional, however,
... and should not interfere with the full and fair
presentation of the case by the parties, in accordance with
the Administrative Procedure Act, 5 U.S.C. §§
554(c), (d), 556(d). Moreover, the full and fair
presentation of the case by the parties is crucial to
serving the ERA purpose of protecting employees from
retaliation for acting on their safety concerns.... The
importance of safety in the handling of radioactive
materials cannot be gainsaid; there is a crucial public
interest at stake when issues of non-compliance with safety
regulations arise....
* * *
The time constraints placed on the proceedings before the
ALJ directly interfered with the parties' opportunity for a
full and fair presentation of the case at hearing. In
conducting the hearing, the ALJ erred in repeatedly limiting
testimony and refusing to admit documentary evidence on
relevancy grounds.
FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED
ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS;
EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA
CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]
In Tyndall v. U.S.
Environmental Protection Agency, 93-CAA-6 and 95-CAA-5
(ARB June 14, 1996), the Complainant was assigned to investigate
an EPA employee regarding alleged improprieties in the awarding
and administration of a computer modeling contract to study the
effects of acid rain. The Complainant alleged in his CAA
complaint that his supervisors gave him directions that
constituted interference in the investigation, and that the EPA
Inspector General had disregarded the Complainant's recusal from
the investigation and forced him to lead the investigation. The
ALJ concluded that the CAA whistleblower complaint did not state
allegations related to the environmental safety or violations of
the CAA, and recommended dismissal of the complaint. The Board
observed that this was analogous to a dismissal under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief
may be granted.
The Board, citing Jenkins v. U.S. Environmental Protection
Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's
employee protection provision is construed broadly, and that the
Complainant's allegations of protected activity met that broad
construction and may constitute protected activity. For
instance, the Complainant could establish that the alleged
interference with the investigation would lead the EPA to rely on
acid rain studies that understate the harmful effects of acid
rain, leading to less than appropriate regulation. The Board
also found that the Complainant stated the other elements of a
prima facie case, and therefore remanded for a hearing.
The Board noted that the Complainant also complained that
interference by his EPA managers may have violated the civil
service laws or the Inspector General Act. The Board stated that
"[t]he allegation of a violation of other statutes does not
defeat the claim under the employee protection provision [of the
CAA]." Slip op. at 9.
HOSTILE WORK ENVIRONMENT; BLACKLISTING; WELL-PLEADED FACTS TO
WITHSTAND RULE 12(b)(6) MOTION
[N/E Digest XIII B 1 and XIII C]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Complainant alleged that the Respondent retaliated against
him when (1) he was introduced as a panelist at a stakeholder's
meeting in a stigmatizing fashion ("we all know him");
(2) "murmurs and groans" were generated by this
introduction; and (3) the Secretary of Energy had a cold reaction
to the Complainant at a meeting, which was allegedly provoked by
blacklisting.
The Board found that the introduction was merely a statement
of fact given the amount of publicity that Complainant's
whistleblower cases had generated. The Board stated that
"nothing which even arguably had an adverse impact on
Varnadore's work environment can be read into this innocuous
remark." The Board found the "murmurs and groans"
allegation to be frivolous, the Complainant having failed to
allege any facts from which it could be concluded that this
contributed to a hostile work environment.
In regard to the Secretary of Labor's alleged remark, the
Board stated that "it is not enough for [the Complainant] to
allege that Secretary O'Leary had a negative reaction to him, and
that negative reaction must have been caused by 'blacklisting
communications' from [the Respondent.]" Rather, [the
Complainant] must allege facts that show that [the Respondent]
made blacklisting remarks to Secretary O'Leary which in turn
contributed to a hostile work environment. In the absence of any
alleged facts regarding this element of his claim, it must be
dismissed pursuant to Rule 12(b)(6)." Slip op. at 66.
HOSTILE WORK ENVIRONMENT; SUPERVISOR WHO DISCOURAGED
EMPLOYEES FROM HAVING CONTACT WITH COMPLAINANT AND SUPERVISOR
WHO
POSTED AN OFFENSIVE MEMORANDUM CONCERNING THE COMPLAINANT
NON-CONSIDERATION OF NON-ACTIONABLE EVENTS IN REGARD TO
ISSUE OF PERVASIVENESS AND REGULARITY
FINDING THAT POSTING WAS OBNOXIOUS AND OFFENSIVE IS, IN
EFFECT, A FINDING OF DETRIMENTAL EFFECT
RESPONDEAT SUPERIOR; LIABILITY DEPENDS ON FORESEEABILITY
OR SCOPE OF EMPLOYMENT AND ON INADEQUATE RESPONSE; ADEQUACY
OF RESPONSE IS BASED ON REASONABLENESS TEST
[N/E Digest XIII C]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board considered whether two acts by supervisors, which
although not resulting in a tangible job detriment, constituted a
hostile work environment. In an earlier decision, the Secretary
of Labor had held that a supervisor in another division who had
discouraged his employees from having contact in the halls with
the Complainant was motivated, at least in part, by retaliatory
animus. Similarly, the Secretary had held that the posting by
another supervisor of a memorandum that explicitly ridiculed the
Complainant's whistleblower activity was retaliatory.
The Board noted that the Secretary applies Harris v.
Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993) and the
five part test articulated in West v. Philadelphia Electric
Co., 45 F.3d 744,753 (3d Cir. 1995) to hostile work
environment cases in DOL whistleblower cases.
Applying Harris, and the Third Circuit test, the Board
found that although the Complainant alleged retaliation beginning
in 1989 and continuing though 1993, only these two incidents were
actionable. These two incidents considered cumulatively, were
not "pervasive, severe or regular". The Board found
that the Complainant was understandably upset by the posting, but
there was no showing that it had a significant impact on the work
environment.
Although the Board agreed with the Secretary's earlier
finding that the posting was obnoxious and offensive (the Board
noting that this was in essence a detrimental effect on the
Complainant), the posting incident foundered on the element of
respondeat superior. The Board cited Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994), in
determining whether an employer is liable for the acts of a
supervisor. According to the Sixth Circuit, liability depends on
"1) whether the supervisor's harassing actions were
foreseeable or fell within the scope of his employment and 2)
even if they were, whether the employer responded adequately and
effectively to negate liability." Pierce, 40 F.3d at
803. See also Karibian v. Columbia Univ., 14 F.3d 773,
780 (2d Cir. 1994). Although the ALJ in the Complainant's first
complaint had found that the posting was "almost
inevitable" in light of the anti-whistleblower environment
he found to exist at Oak Ridge Nuclear Laboratory, the Board
noted that the Secretary had rejected that finding in a prior
decision in the matter, and that it could not concur with the
ALJ's finding. Further, the Board found that the employer's
response upon learning of the posting effectively negated
potential liability.
The Complainant's supervisor had immediately called a meeting
with the supervisor who had posted the offensive memorandum, and
then sent him a memorandum pointing out the Respondent
"want[s] to avoid even the perception of a hostile working
environment for [the Complainant] and for all other ACD
people." Slip op. at 77, quoting transcript from first
proceeding. The Board, relying on Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431-432 (7th Cir. 1995), applied a
reasonableness test, and found that this immediate response was
sufficient to negate liability. The Board distinguished Smith
v. Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996), on the
ground that the instant case involved isolated incidents, one of
which was immediately attended to, while Smith involved
upper level managers who knew of repeated, derogatory cartooning
and took no action to remedy the situation.
NEW EVIDENCE OFFERED DURING REVIEW BY BOARD
[N/E Digest VIII B 2 b and IX D 1]
In Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996), the
Complainant submitted two affidavits to the Board, asking that
they be admitted into evidence and considered on review, or that
the case be remanded to the ALJ for the taking of additional
evidence.
The Board looked to the provisions of 29 C.F.R. §
18.54(c) and Fed. R. Civ. P. 60(b)(2), and the decision of
NLRB v. Jacob E. Decker and Sons, 569 F.2d 357 (5th Cir.
1978) for standards on admission of newly discovered evidence.
The Board determined that in regard to the first affidavit, the
Complainant could only have become aware of the affiant's
potential as a witness through extensive discovery, and that the
parties had not been afforded an opportunity for such discovery.
The ALJ had limited discovery because of the statutory and
regulatory time limits on whistleblower proceedings; the Board
indicated that those time limits must yield to a litigant's need
to prepare a full and fair presentation of the case. The Board
found that the limits on discovery rendered the affiant's
testimony "not readily available" prior to hearing.
Since the Respondent must be given a meaningful opportunity to
respond to affiant's allegations, the case was remanded to the
ALJ.
The second affidavit was written by the Complainant.
Although there was no evidence that such information was not
readily available prior to the hearing, or that the Complainant
was excusably ignorant of it prior to the hearing, the Board
found that the ALJ's limitation of the parties pre-hearing
preparation and the presentation of the evidence at the hearing
was improper, and that the post-hearing admission of evidence
relevant to the issues raised in the Complainant's affidavit was
appropriate "as the conduct of the proceedings before the
ALJ interfered with the overall presentation of the Complainant's
case." Slip op. at 8-9 (footnote omitted).
OFFICIAL NOTICE
[N/E Digest VII D 2]
In Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996), the
Board held that the contents of the American Welding Society
Bridge Welding Code may be subject to the taking of official
notice under 29 C.F.R. § 18.201. Slip op. at 9 n.6.
PARTIES; UNINCORPORATED DIVISION
[N/E Digest XIV B 1]
Oak Ridge National Laboratory is an unincorporated division
of Energy Systems, Inc., and is not a legal entity. Therefore,
in Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), it
was dismissed as a party. The same is true of other divisions of
Energy Systems, Inc.
PARTIES; PARENT COMPANY
[N/E Digest XIV B 1]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
Lockheed Martin and Lockheed Martin Technologies were dismissed
as Respondents where they were merely parent companies of the
Complainant's employer, Energy Systems, Inc.
PARTIES; SUBDIVISION OF FEDERAL DEPARTMENT CANNOT BE HELD
INDEPENDENTLY LIABLE
[N/E Digest XIV B 4 e]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Complainant named both the Department of Energy and DOE's Oak
Ridge Operations Office. The Oak Ridge Operations Office, being
merely a subdivision of DOE, is subsumed within DOE and cannot be
held independently liable. Slip op. at 55 n.37.
POSTING OF WHISTLEBLOWER PROVISION OF ERA; EXPLANATORY
MATERIAL NOT REQUIRED
[N/E Digest XXII]
Where the Respondent had posted the text of 42 U.S.C. §
5851, the Complainant's claim, based on the absence of
"explanatory material that would make it meaningful [for
employees]" was dismissed under Fed. R. Civ. P 12(b)(6).
Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 68 (ARB June 14, 1996).
PRIMA FACIE CASE; MAY BE BASED ON ALLEGATIONS FROM THE
COMPLAINTS AND SUPPORTING PAPERS ALONE; NO FINDINGS OF FACT
[N/E Digest XI E 13]
In Tyndall v. U.S.
Environmental Protection Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Board reviewed two matters in
which the ALJs had recommended summary dismissal of the
complaints. The Board expressly made no
findings of fact, but made affirmative findings that the
Complainant had established a prima facie case.
RECOMMENDED DECISIONS SUBJECT TO PLENARY REVIEW
[N/E Digest VIII A 2 a]
ALJ recommended decisions under the environmental
whistleblower provisions are subject to plenary review by the
Secretary of Labor or his or her delegatee. In Varnadore
v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 54 (ARB June 14, 1996).
REINSTATEMENT; CHANGE IN CORPORATE IDENTITY
[N/E Digest XVI B 2]
In the May Newsletter, the supplemental order regarding
remand in Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) was casenoted to
the effect that upon the sale of a subsidiary, the company that
retained liability would have the obligation to reinstate the
Complainant to a substantially similar position. The matter was
revisited in Creekmore v.
ABB Power Systems Energy Services, Inc., 93-ERA-24 (ARB June 20, 1996)
The Respondent asked for reconsideration because that ruling
had the effect of ordering an entity that was not a party to the
current action to reinstate the Complainant. Specifically, the
company that sold the subsidiary that employed the Complainant
retained the obligation to defend the action and to indemnify the
new owner against monetary damages. That company was not a named
Respondent. The Board noted that the entity that violated the
ERA has the obligation to offer reinstatement to the Complainant,
which in this case was the named Respondent. It continued:
"If a separate contractual obligation exists that requires
another entity to assume [the offender's] reinstatement
obligation, the proper means to resolve that dispute is through
an enforcement action." Slip op. at 3.
The Board noted that the Department of Labor would not
normally be concerned with a private indemnity agreement, but
that the Department has the responsibility to enforce the
employee protection provision of the CAA and to ensure that a
bona fide reinstatement is offered. Observing that the
selling company's interests and the offending former subsidiary's
interest had diverged on the issue of reinstatement, the Board
directed the ALJ on remand to give the selling company notice and
an opportunity to be heard on this issue. The Board pointed out
to the parties that back pay liability continues to accrue until
a bona fide offer of reinstatement is made.
RES JUDICATA
[N/E Digest XXI A]
Where issues relating to salary increases were litigated and
decided in the proceeding relating to Complainant's original
complaint (which had later been consolidated with two other
complaint proceedings on review before the Secretary of Labor and
the Administrative Review Board), the ALJ in a subsequent
complaint properly concluded that the salary increase issue was
res judicata.Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 52-53 (ARB June 14, 1996).
RESPONDENT'S AWARENESS; COMMUNICATION REQUIREMENT; CLARITY
OF
COMMUNICATION
[STAA Digest V A 4 c iv]
Where the supervisor who made the decision to terminate the
Complainant's employment had a reasonable belief that the
Complainant could drive safely because he was not advised that
the Complainant had made a trip that was not in the itinerary,
nor was he advised that the Complainant was too fatigued to drive
safely, the supervisor did not know, and could not reasonably
have known, that the Complainant's refusal to take dispatch was
protected activity. The supervisor had only been told that the
Complainant "felt that he was over the hours of DOT."
Vogt v. Atlas Tours, Ltd., 94-STA-1 (ALJ Sept. 21,
1994), adopted, (ARB
June 24, 1996).
SETTLEMENT CONTINGENT ON AFFIRMANCE OF SECRETARY'S ORDER BY
APPELLATE COURT
[N/E Digest XVII G 9]
The Secretary in Frady v. Tennessee Valley Authority,
92-ERA-19 and 34 (Sec'y Oct. 23, 1995), determined that the
Respondent had violated the ERA and remanded to the ALJ to
determine the Complainant's complete remedy. On remand, the
parties reached a settlement agreement as to damages that
indicated that the Respondent intends to seek judicial review of
the Secretary's decision, and that expressly provided that the
Respondent's obligation to provide relief to the Complainant
under the agreement was contingent on the appellate court
affirming the Secretary's order. The Administrative Review Board
approved the settlement, noting that the Respondent agreed not to
seek a stay of the Board's final decision concerning damages
pending judicial review. Frady v. Tennessee Valley
Authority, 92-ERA-19 and 34 (ARB June 7, 1996).
SETTLEMENT; CONFIDENTIALITY PROVISION; NOTIFICATION
CLAUSE
[N/E Digest XVII B 1 a]
In Gillilan v.
Tennessee Valley Authority, 89-ERA-40, 91-ERA-31,
94-ERA-5 and 9, 95-ERA-26 and 32 (ARB May 30,
1996), the parties included a confidentiality provision in their
settlement that requires Complainant and his counsel to timely
notify the Respondent's counsel if they receive legal process or
an order purporting to require disclosure of the agreement. The
Board, citing McGlynn v. Pulsair Inc., 93-CAA-2 (Sec'y
June 28, 1993), found that the notification requirement was not
violative of public policy because it did not restrict or impinge
upon the Complainant or his counsel from such disclosure after
appropriate legal process.
To the same effect: Davidson v. Temple
University, 94-ERA-25 (ARB June 24, 1996); Abbasi
v. Bechtel Power Corp., 96-ERA-4 (ARB May 31, 1996)
SETTLEMENT; MEANING OF PROVISION THAT RESPONDENT WILL TAKE
"ALL REASONABLE STEPS" TO PREVENT REPRISAL
[N/E Digest XVII G 9]
In Smith v. Tennessee
Valley Authority, 96-ERA-10 (ARB June 24, 1996), the
parties' settlement agreement included a provision that the
Respondent "will take all reasonable steps to ensure
that no reprisal will be taken against [the Complainant] as a
result of this settlement or as a result of his participation in
the appeal process." Slip op. at 2 (emphasis as supplied by
ARB). The Board construed this language "to mean that
Respondent's managers, administrators and employees will be made
aware that any such reprisal is contrary to law and the
occurrence of such would be the basis for a separate
environmental whistleblower claim by Complainant."
Id.
SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY; ENERGY
REORGANIZATION ACT
[N/E Digest XIV B 4 b and XX E]
The Department of Energy is not a proper party defendant in
an ERA whistleblower case because the United States has not
waived sovereign immunity under the ERA. Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1
and 94-CAA-2 and 3 (ARB June 14, 1996), citing Teles v. U.S.
Dept. of Energy, 94-ERA-2 (Sec'y Aug. 7, 1995).
SOVEREIGN IMMUNITY UNDER THE SDWA; INDIAN NATION
[N/E Digest XX E]
In White v. The Osage
Tribal Council, 95-SDW-1 (ALJ May 31, 1996), the ALJ
recommended a finding that the Osage Nation was not immune from
suit pursuant to the Safe Drinking Water Act's whistleblower
provision based on sovereign immunity. The ALJ based this finding
on Phillips Petroleum Co. v. U.S. Environmental Protection
Agency, 803 F.2d 545, 555-556 (10th Cir. 1986), and the 1986
amendments which added section 1451 to Part E of the Safe
Drinking Water Act. Safe Drinking Water Amendments of 1986, Pub.
L. No. 99-339, §302, 100 Stat. 642,
665-66 (1986). The ALJ also found that the Tribal Council had
expressly consented to suit when the Osage Tribe began
contracting with the United States in 1979, at which time the
Tribal Council adopted the Osage National Federal Programs
Policies and Procedures Manual which requires compliance
with state and federal employment laws.
STANDARDS OF CONDUCT AT HEARING
[N/E Digest VII D 6]
It is not required that a hearing be conducted in a rigid or
overly formal manner. Nonetheless, an ALJ should not hesitate to
apprise the witnesses of basic standards of conduct during
examination by counsel. It is not the role of the witness to
object on relevancy grounds to a question or line of questioning.
See 29 C.F.R. §§ 18.36, 18.37, 18.611. Where,
however, a party is appearing without legal counsel, it is
appropriate for the party, when being examined as a witness to
raise such objections. Timmons v. Mattingly Testing
Services, 95-ERA-40, slip op. at 15 n.11 (ARB June
21, 1996).
TIMELINESS OF REQUEST FOR HEARING
[N/E Digest VI E]
Filing periods may, under certain specific circumstances be
subject to equitable tolling, such as where the complainant has
in some extraordinary way been prevented from asserted his or her
rights, or where the complainant raised the specific statutory
claim but in the wrong forum. Where, however, the Complainant
simply ignored the procedural requirements governing the filing
of a request for a hearing, and had notice of those procedural
requirements and time limits and failed to comply, the ALJ's
recommendation of dismissal was adopted as the final order in the
case. Backen v. Entergy
Operations, Inc., 95-ERA-46 (ARB June 7, 1996).
UNDERLYING VIOLATION; CLAIM FOR WHICH RELIEF CAN BE GRANTED;
REIMBURSEMENT OF DOE CONTRACTOR FOR DEFENSE OF EARLIER
WHISTLEBLOWER COMPLAINT
[N/E Digest II B 2]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Complainant complained that DOE improperly reimbursed a
contractor for its defense of an earlier complaint made by the
Complainant. The Board, applying Fed. R. Civ. P. 12(b)(6), found
that this aspect of the complaint failed to state a claim upon
which relief may be granted. The Board found that (1) the
Complainant was not an employee of DOE; (2) the Complainant
failed to state how DOE's funding policies had an adverse effect
upon his compensation, terms, conditions, or privileges of
employment; and (3) the Complainant failed to claim that DOE's
funding of the defense was motivated by retaliatory animus. The
Board also noted the ALJ's conclusion that DOL had no
jurisdiction to decide claims contesting DOE's use of funds
appropriated by Congress was "patently correct". Slip
op. at 58 n.40.
UNDERLYING VIOLATION; LACK OF SUBJECT MATTER JURISDICTION;
UNDERLYING VIOLATION; EMPLOYMENT OF FORMER DOL OFFICIAL
[N/E Digest II B 2]
In Varnadore v. Oak
Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1
and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant named the
former head of the Office of Administrative Appeals as a
Respondent on the ground that she allegedly acted in an unethical
manner by advising one of the Respondents on an environmental
whistleblower case that was pending in the Department of Labor at
the time she was director of the OAA. The Board, assuming
arguendo that the former director's acts were unethical under 29
C.F.R. § 2.2, found that they were not actionable under the
environmental whistleblower provisions. Thus, this claim was
dismissed for lack of jurisdiction over the subject matter
pursuant to Fed. R. Civ. P. 12(b)(1).