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 I]
VICARIOUS LIABILITY OF EMPLOYER FOR ACTIONS OF SUPERVISOR

In June, the United States Supreme Court issued two Title VII sexual discrimination decisions that spoke to the vicarious liability of an employer for the actions of a supervisor where no tangible adverse employment action was taken. Applying general agency principles, the Court held that vicarious liability is applicable, but that the employer may raise the affirmative defense of reasonable care and failure by the complainant to take advantage of preventative or corrective opportunities provided by the employer. Specifically, in Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (June 26, 1998), the Court held that when a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement (Second) of Agency § 219(2)(b)'s "aided in the agency relation" rule provides the appropriate analysis. The Court held that

In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Similarly, in Faragher v. Boca Raton, Fla., 118 S.Ct. 2275 (June 26, 1998), also a Title VII case, the Court held that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim.

In these decisions, the Court observed that analysis of Title VII cases as being either a "quid pro quo" or "hostile work environment" type are of limited utility. Where a claim is based on hostile work environment, a showing must be made of severe or pervasive conduct. When discrimination is thus proved, the factors stated in the quoted language above, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability.

In a Title IX decision, Gebser v. Lago Vista Independent School District, 118 S.Ct. 1989 (June 22, 1998), however, the Court held that damages may not be recovered for teacher-student sexual harassment in an implied private action unless a school district official who, at a minimum, has authority to institute corrective measures on the district's behalf, has actual notice of, and is deliberately indifferent to, the teacher's misconduct.

[Editor's note: There are many similarities between DOL whistleblower adjudications and Title VII cases. In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary found that the Title VII decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), regarding a hostile work environment is equally applicable to environmental whistleblower cases. A close analysis of the pertinent whistleblower provision and Title VII should be made, however, before assuming that Title VII precedent governs DOL whistleblower proceeding. Compare Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995) (finding that significant language difference between Title VII and the environmental whistleblower provisions rendered it inappropriate to read the breadth of Title VII's coverage into the environmental whistleblower provisions in regard to the interpretation of the term "employee").

See also Coppack v. Northrop Gumman Corp., 98-SWD-2 (ALJ July 24, 1998) (ALJ interpreted Varnadore as requiring, inter alia, "the existence of respondeat superior liability or whether the employer either knew or should have known of the harassment and failed to take prompt, remedial action." Slip op. at 36.)]

[N/E Digest II B 2]
FECA COMPLAINT COULD NOT BE ADJUDICATED AS AN ERA COMPLAINT

In Billings v. Tennessee Valley Authority, 92-ERA-53 and 93-ERA-46 (ARB July 15, 1998), Complainant alleged that statements made by one of Respondent's employees to the Office of Worker's Compensation Programs regarding possible fraud committed by Complainant's husband resulted in his loss of benefits under the Federal Employees Compensation Act (FECA) and were in retaliation for his presumed protected activities. The presiding ALJ issued orders to show cause why the complaints should not be dismissed for failure to state a claim upon which relief could be granted under the ERA. Complainant did not answer.

The ARB adopted the ALJ's recommendations that the complaint be dismissed both for failure to state a claim and failure to comply with the orders to show cause.

[N/E Digest III A 1]
TIMELINESS OF COMPLAINT; DOL ERRED IN CHARACTERIZING A LETTER, WHICH WAS NOT IN THE RECORD, AS NOT CONSTITUTING AN ERA COMPLAINT

In Roberts v. U.S. Dept. of Labor, No. 97-3819 (6th Cir. June 23, 1998) (unpublished decision available at 1998 WL 381666) (case below 96-ERA-24), the Sixth Circuit found that the ARB's conclusions about the nature of a letter Complainant had filed with DOL, but which DOL had forwarded to the EEOC, were unsupported by substantial evidence where the letter was not in the current record. The court apparently ruled that although Complainant may have been remiss in not filing the letter in the proceeding before the ALJ and the ARB, since the letter was not in the record, the ARB should not have characterized what it was. Thus, the matter was remanded "so that the nature of the letter can be more precisely determined."

[N/E Digest VI B]
REQUEST FOR HEARING; FAILURE TO TIMELY SERVE NOTICE ON RESPONDENTS

In Webb v. Numanco, LLC, 98-ERA-27 and 28 (ALJ July 17, 1998), Complainant made a timely request for a hearing with the Chief ALJ using one of the prescribed methods of service listed in 29 C.F.R. § 24.4(d), but failed to serve one Respondent on the same day as the request for hearing, but rather served it with notice eight days later using regular mail which, under the regulation, is not an acceptable method of service. Complainant failed to serve the other Respondent by any means of service. Neither Respondent alleged any prejudice due to Complainant's service errors.

The ALJ recommended dismissal of the complaint, finding that even though Complainant made a timely request for a hearing to the Chief ALJ, his failure to serve Respondents with a copy of the request, in a timely manner or by an acceptable method, defeated jurisdiction to hear the matter, even in the absence of a showing of prejudice to the Respondents.

The ALJ came to this conclusion based on an interpretation of the February 9, 1998 amendments to Part 24, and based on two recent decisions of the ARB which had strictly construed the new regulations, Degostin v. Bartlett Nuclear, Inc., 98-ERA-7 (ARB May 4,1998) (time limit for filing a request for a hearing must be strictly construed) and Staskelunas v. Northeast Utilities Co., 98-ERA-8 (ARB May 4, 1998) (complainant who relies on alternate means for delivery, e.g., by mail, assumes the risk that the request may be received beyond the due date). The ALJ distinguished Jain v. Sacramento Municipal Utility, 89-ERA-39 (1989), aff'd (Sec'y Nov. 21,1991) -- in which it was held that the copying requirements were merely directive, rather than jurisdictional -- on the ground that the regulations in effect at that time were more loosely drafted in regard to service on other parties of a notice of hearing.

[Editor's Note (8/12/98): The Assistant Secretary for OSHA has petitioned for ARB review of this decision, arguing that the ALJ erred in this interpretation of the regulations.]

[Editor's Note (9/9/98): In Stoner v. General Physics Corp., 1998-ERA-44 (ALJ Sept. 4, 1998), Respondent cited Webb in a motion to dismiss. The ALJ in Stoner, however, found:

   The requirement of 29 C.F.R. § 24.4(d)(3) for a complainant to serve a copy of the request for a hearing on respondents the same day it is filed with the Chief Administrative Law Judge is merely directive and not jurisdictional. There is no explicit support for the requirement in the ERA or APA. Although lamentable, the initially pro se complainant's failure to adhere to the requirement does not deprive this tribunal of jurisdiction nor deprive the respondents of either due process or any statutory right. The respondents have not alleged prejudice nor do I find any.

1998-ERA-44 @ 9.]

[N/E Digest IX M]
WITHDRAWAL OF COUNSEL

In Gaballa v. Carolina Power & Light Co., 96-ERA-43 and 98-ERA-24 (ALJ July 7, 1998), Complainant's counsel submitted a motion to withdraw pursuant to 29 C.F.R. § 18.34(g); Complainant, however, filed an opposition to the motion for withdrawal. The ALJ directed Complainant's counsel to submit a statement containing the reasons for his withdrawal for in camera review. The ALJ reviewed the information, and in an order in which discussion was limited so as not to reveal matters that could possibly injure Complainant's case, concluded that counsel should be permitted to withdraw. The ALJ found that there was an irreconcilable rift between Complainant and his counsel relating both to reaching an agreement on fees and the manner in which the case should be handled. The ALJ also observed that section 18.34(g) contains no "good cause" or other criteria for withdrawal, that counsel did not attempt to withdraw at the last moment before trial, and that there was ample time for Complainant to obtain other counsel.

[N/E Digest XI A]
PRIMA FACIE CASE ANALYSIS IS NOT RELEVANT ONCE COMPLAINT IS FULLY TRIED ON MERITS

Where a case is fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question 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. If he or she did not, it matters not at all whether he or she presented a prima facie case. If she did, whether she presented a prima facie case is not relevant. Adjiri v. Emory University, 97-ERA-36 @ 6 (ARB July 14, 1998).

[N/E Digest XI A 2 c]

[N/E Digest XI B 2 d viii]
LEGITIMATE NON-DISCRIMINATORY REASON FOR TERMINATION FROM EMPLOYMENT; EMPLOYEE'S BEHAVIOR TOWARD SUPERVISORS AND CO-WORKERS; LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY SUPERVISOR WHO MADE TERMINATION DECISION

In Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998), Complainant was found to have failed to carry her burden of persuasion of unlawful discrimination where Respondent presented convincing evidence that it had legitimate, nondiscriminatory reasons for terminating Complainant's employment -- including insubordination, lack of co-operation with co-workers, and job abandonment. Moreover, Complainant failed to present any evidence to establish a link between her purported protected activity and her discharge. The ARB noted that the official who fired Complainant was not even aware of Complainant's safety complaints, and that the ALJ had accorded the pro se Complainant considerable latitude in presenting her case.

[N/E Digest XVII E 2]
EXEMPTIONS FOUR AND SIX; DISCLOSURE OF TERMS OF SETTLEMENT UNDER FOIA

In Frey v. U.S. Coast Guard Academy, 98-CER-1, 2 and 3, the parties reached a settlement that was approved by the presiding ALJ. A local newspaper filed a FOIA request for a copy of the settlement. Because the parties had designated the settlement as confidential commercial information, predisclosure notification was provided. Respondent's response to the notice implied that it was not was claiming disclosure of the settlement would cause substantial competitive harm in any subsequent settlement negotiations, and did not identify what other substantial competitive harm might result if the settlement was released. The Chief ALJ, considering the absence of a statement of what interests were at stake under Exemption 4, and noting authority disfavoring "sealing" of settlements, concluded that Exemption 4 was not shown to be applicable. The agreement, however, was not disclosed, at least on a delayed basis, based on a balancing of the privacy and public interests at stake under Exemption 6. The Chief ALJ found that public employees have a privacy interest in settlements reached with their employers. The FOIA requester has appealed this decision to the Office of the Solicitor.

In a FOIA request relating to the settlement agreement in Harris v. Tennessee Valley Authority, 97-ERA-26 and 50, the Chief ALJ found that Exemption 4 did apply, even though TVA is a government instrumentality. Applying the three part test stated in Federal court decisions, the Chief ALJ found that the information was "obtained from a person" because the settlement came from both TVA and an employee seeking to protect her private employment rights, that the settlement amount and terms were financial or commercial information, and that -- applying the competitive harm analysis -- the information was confidential in the sense that disclosure would place Respondent at a competitive disadvantage in future settlement negotiations. Although the FOIA requester, a news organization, wrote a story about this ruling, OALJ has not been informed of any formal appeal.

[STAA Digest IV A]
PRIMA FACIE CASE ANALYSIS IS NOT RELEVANT ONCE COMPLAINT IS FULLY TRIED ON MERITS

Where the case is fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question 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. If he or she did not, it matters not at all whether he or she presented a prima facie case. If he or she did, whether a prima facie case wsa presented is irrelevant. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998).

[STAA Digest V B 2 a I]
REFUSAL TO DRIVE BECAUSE OF ILLNESS IS PROTECTED ACTIVITY ONLY IF THE ILLNESS IMPAIRS THE DRIVER'S ABILITY TO DRIVE SAFELY

A refusal to drive because of illness is not necessarily protected activity under STAA; rather, to be protected, a refusal to drive must be based on an illness that impairs the driver's ability to drive safely. See 49 C.F.R. §392.3 (1997). An employer may take action against employees who feign illness, and the STAA does not prohibit an employer from establishing reasonable methods or mechanisms for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 @ 7-8 and nn.7-8 (ARB July 8, 1998) (in instant case, however, there was substantial evidence that Complainant's illness was not fabricated and that Respondent had reason to know that; application of absenteeism policy to Complainant under circumstances was violation of STAA's antiretaliation provision).

[STAA Digest VI B 4]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON ILLNESS; COMPANY POLICY ON ABSENTEEISM

In Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998), Respondent argued that the ALJ erred in finding a causal connection between Complainant's protected activity (refusing to drive when too sick to do so safely) and the suspension. The ALJ had relied on Ass't Sec'y & Curless v. Thomas Sysco Food Svc., 91-STA-12 (Sec'y Sept. 3, 1991), remanded for vacatur on grounds of mootness, 983 F.2d 60 (6th Cir. 1993), in which the Secretary had ruled that the respondent violated the STAA when it gave the complainant, who was under a doctor's order not to drive, a verbal warning for excess absences under a company policy the Secretary concluding that the complainant ran afoul of the company's policy because he engaged in protected activity. Respondent argued that Curless is no longer viable because of the U.S. Supreme Court holding in Hazen Paper v. Biggins, 507 U.S. 604 (1993), to the effect that in an age discrimination complaint, years of service were "analytically distinct" from age. The ARB found that Hazen was not fatal to Curless because "there is no distinction, analytical or otherwise, between [the Complainant's] protected activity of refusing to drive while impaired by illness and his absence from work. They are the same thing." 91-STA-21 @ 7.