WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
August 10,
1998
(Revised August 12, 1998 and September 9, 1998)
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 AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[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. CompareReid 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 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.