Office of Administrative Law Judges
United States Department of Labor
October 5, 1995
This newsletter covers the materials that became available during
the period from September 9 to October 4, 1995.
ADVERSE ACTION; BEHAVIOR OF SUPERVISOR AT MEETING
[N/E Digest
XIII B 18]
In Marien v. Northeast
Nuclear Energy Co,
93-ERA-49 and 50 (Sec'y Sept. 18, 1995), there was evidence that
Complainants' supervisor raised his voice and may have become
red-faced during a meeting in which the Complainants questioned
the validity of a computer program being tested in relation to
the power plant's fitness for duty program. Of the participants
at the meeting, however, only the Complainants testified that
they heard the supervisor make a negative statement about the
Complainants going to outside sources. The Secretary held that
the supervisor's demeanor did not demonstrate that Respondents
retaliated against Complainants because of their protected
activity. The Secretary also found it significant that the
Complainants did not suffer any other forms of retaliation,
such as reassignment, loss of pay, adverse performance
evaluation, or denial of vacation.
ADVERSE ACTION; DOE'S FUNDING OF CONTRACTOR'S LITIGATION
EXPENSES [N/E Digest XIII B
18]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of a
complaint of the allegedly wrongful funding of contractor
litigation by the DOE because the Complainant failed to
articulate how DOE's funding policies adversely affected his
employment with the contractor.
ADVERSE ACTION; EMPLOYMENT OF CONSULTANT ALLEGEDLY IN
CONFLICT WITH ETHICS REGULATIONS [N/E Digest XIII B 18]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that the
former Director of the Office of Administrative Appeals is
violating ethics regulations by acting as a consultant to one of
the Respondents. The ALJ recommended holding that, even assuming
there was subject matter jurisdiction, the Complainant had failed
to establish how such employment constituted a discriminatory or
retaliatory act against the Complainant.
ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; RESPONDENT'S
RESPONSIBILITIES IN RESPONDING TO COMPLAINT OF HARASSMENT;
ATTEMPTS AT CONCILIATION FAVORED; RELEVANCE OF COMPLAINANT'S
PRESENT ATTITUDE TOWARD WORKPLACE
[N/E Digest
XIII C]
The Fourth Circuit has recognized that "retaliatory
harassment" is actionable under the ERA, as in Title VII
cases, for hostile work environments. English v.
Whitfield, 858 F.2d 957, 963-964 (4th Cir. 1988). For
harassment to be actionable, it must be sufficiently severe or
pervasive as to alter the conditions of employment and create an
abusive working environment. Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986) (Title VII decision
applied to ERA by the Secretary in English v. General Elec.
Co., 85-ERA-2, slip op. at 6 (Sec'y Feb. 13, 1992)).
In Marien v. Northeast
Nuclear Energy Co, 93-ERA-49 and 50 (Sec'y Sept. 18,
1995), the Secretary addressed the scope of a respondent's
responsibilities when responding to a
complaint of harassment, finding that the ERA requires only that
an employer consider and evaluate allegations of harassment in an
open-minded and fair manner. It was not a hostile act by
the Respondents in Marien to hire mediators rather
than a fact finder in responding to Complainants allegations of
harassment. The Secretary noted that attempting conciliation is
the first step in attempting to resolve a claim of employment
discrimination.
In Marien, the Secretary also found it
significant that one of the Complainants testified that she
still loves her job and hopes to stay as tending to disprove the
existence of a hostile work environment. Hostile work
environments, the Secretary noted, typically involve detraction
from an employee's job performance, discouragement of employees
from remaining on the job, or prevention of employees from
advancing in their careers.
ADVERSE EMPLOYMENT ACTION; INAPPROPRIATE CONDUCT AND
STATEMENTS [N/E Digest XIII C]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that various
statements and conduct (such as facial expressions and tone of
voice) of various persons including the Secretary of Energy
constitute discriminatory or retaliatory conduct. The ALJ
recommended dismissal of the complaint where the Complainant
failed to plead how such conduct adversely affected his
compensation, terms, conditions or privileges of employment.
APPELLATE REVIEW; DEFERENCE TO SECRETARY OF LABOR
[N/E Digest
VIII C 2 b]
In Kahn v. United States Secy. of Labor, 1995
U.S. App. LEXIS 24111 (7th Cir. 1995), the court indicated that
when reviewing the Secretary of Labor's final decision in an ERA
whistleblower case, Congress' grant of power to the Secretary to
review such claims was a recognition of the agency's special
competence to handle those matters, which compels deference from
the courts when reviewing how that power is exercised.
ATTORNEY FEES; PRELIMINARY ORDER
[N/E Digest
XVI E 7]
In Varnadore v. Oak Ridge National Laboratory,
94-CAA-2 and 3 (Sec'y Sept. 11, 1995), the Secretary held that,
under the whistleblower provision of the ERA as amended in 1992,
42 U.S.C. § 5851(b)(2)(A) and (B), where the ALJ issues a
recommended decision finding that the complainant has prevailed
on any of his or her claims and that relief should be granted,
the complainant is entitled to a preliminary order of attorney's
fees and costs. The Respondent in Varnadore
expressed concern that recouping paid fees and costs would be
difficult if the Complainant ultimately failed on the merits or
the recommended fee award be reduced. The Secretary indicated
that recoupment of fees should not be a significant problem
because 20 C.F.R. § 18.36 permits exclusion of an attorney
from appearing before an ALJ for refusing to comply with
directions.
ATTORNEY'S FEES; PRO SE COMPLAINANT
[N/E Digest
XVI E 6]
A successful pro se complainant in an ERA whistleblower case
is not entitled to payment of attorney fees, but is entitled to
payment of the reasonable costs incurred in bringing the
complaint, such as fees for typing, photocopying, mailing,
telegrams, long distance telephone calls, and the like.
Johnson v. Bechtel
Construction Co., 95-ERA-11
(Sec'y Sept. 11, 1995).
BACK PAY; PREJUDGMENT INTEREST; UNCERTAINTY RESOLVED IN FAVOR
OF COMPLAINANT
[N/E Digest
XVI C 1 c]
In Johnson v. Bechtel
Construction Co., 95-ERA-11 (Sec'y Sept. 11, 1995),
in regard to the calculation of
the beginning date for an award of prejudgment interest on the
back pay award, the Respondent's contention of the earliest date
the Complainant would have been hired to work for an outage was
rejected where a different laborer was hired eleven days earlier.
The Secretary based this ruling on the principle that
uncertainties in back pay awards are resolved in favor of the
successful complainant and against the discriminating party.
Citing Nichols v. Bechtel
Construction Inc., 87-ERA-44, slip op. at 10 (Sec'y Nov.
18, 1993), aff'd sub nom. Bechtel Construction Co. v. Sec'y of
Labor, 50 F.3d 926 (11th Cir. 1995).
BACK PAY; PROOF OF SUBSEQUENT LEGITIMATE LAY OFF
[N/E Digest
XVI C 2 b i]
In Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept.
19, 1995), there was evidence that the number of workers employed
by the Respondent, a roofing company, varied with the season and
the amount of work. It was possible that the Respondent may have
legitimately laid off the Complainant at some time after the date
of the illegitimate layoff. The Secretary directed that, on
remand, if the parties could not agree on the amount of back pay
owed, the ALJ shall take evidence and make findings on any such
legitimate periods of lay off and the resulting amount of back
pay.
BLACKLISTING; ABSENCE OF EVIDENCE OF IDENTITY OF CALLER OR
THAT SUBSTANCE OF CONTACT INCLUDED ADVERSE STATEMENTS ABOUT THE
COMPLAINANT
[N/E Digest
XIII B 1]
In Saporito v. Florida
Power & Light Co.,
93-ERA-23 (Sec'y Sept. 7, 1995), the Complainant had previously
prevailed in a whistleblower complaint against Arizona Public
Service Company. There was evidence that an unidentified caller,
who said he was from the Respondent Florida Power & Light
Co., had telephoned Arizona Public Service Company's Vice
President for Nuclear Operations concerning the Complainant.
The Complainant could not prevail on the instant claim of
blacklisting against Florida Power & Light Co. where there
was no evidence of the actual identity of the caller (i.e., there
was insufficient evidence that the caller was an official or even
an employee of the Respondent) or that the caller stated that
the Complainant had been a whistleblower, mentioned why the
Complainant left Florida Power, or stated or implied that Arizona
Public Service should do anything to the Complainant.
BLACKLISTING; POOR RECOMMENDATION
[N/E Digest
XIII B 1]
A former supervisor's statement that he would not rehire a
worker may be an instance of blacklisting. Webb v.
Carolina Power & Light Co., 93-ERA-42 (Sec'y July
14, 1995), citing Beckett v. Prudential Ins. Co. of
America, No. 94-CV-8305 (SAS), 1995 U.S. Dist. LEXIS
6513 (S.D. N.Y. May 15, 1995) ("Poor recommendations . . .
may be discriminatory practices if done in direct retaliation for
a former employee's opposition to an unlawful employment
practice."); compare Smith v. Continental Ins.
Corp., 747 F.Supp. 275, 281 (D. N.J. 1990), aff'd, 941
F.2d 1203 (3d Cir. 1991) (rejecting claim of blacklisting where
plaintiff admitted she was unaware of any negative verbal or
written job references to prospective employers).
BLACKLISTING; VERBAL V. WRITTEN STATEMENTS
[N/E Digest
XIII B 1]
A verbal statement made to hiring personnel can constitute
blacklisting; no document or written list is required.
Webb v. Carolina Power
& Light Co., 93-ERA-42
(Sec'y July 14, 1995), citing Holden v. Gulf States
Utilities, 92-ERA-44, slip op. at 3, 13 n.8. (Sec'y Apr.
14, 1995).
CAUSAL LINK; SIX WEEK LAPSE DOES NOT NEGATE INFERENCE OF
CAUSATION
[STAA Digest
IV A 2 b ii]
In Williams v.
Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11,
1995), the ALJ concluded that the temporal proximity of the
Complainant's discharge - - six weeks -- was too distant to raise
an inference of causation (although he did find a prima facie
case established generally).
The Secretary rejected this conclusion, noting that in prior
decisions, he had found that even a ten-month lapse may be
sufficient to raise an inference of causation. A six week lapse,
the Secretary held, is not so distant as to negate the inference
of a causal link between the protected activity and the adverse
employment action.
CAUSATION; DOE'S FUNDING OF CONTRACTOR'S LITIGATION
EXPENSES [N/E Digest XI A 2 a]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of a
complaint of the allegedly wrongful funding of contractor
litigation by the DOE because there was an absence of proof that
the decision to fund the litigation was motivated in part by
discriminatory animus.
CAUSATION; UNPROTECTED CONDUCT IMMEDIATELY PRIOR TO ADVERSE
EMPLOYMENT ACTION; PERVASIVE POLICY OF ENCOURAGING SAFETY
COMPLAINTS; REDUCED PUNISHMENT
[N/E Digest
XI C 2 b]
Evidence that a complainant engaged in wholly unprotected
misconduct immediately prior to the respondent taking adverse
employment action may belie a causal connection between earlier,
ongoing protected action and the adverse action. SeeGibson v. Arizona Public
Service Co., 90-ERA-29, 46
and 53 (Sec'y Sept. 18, 1995), citing Monteer v. Milky Way
Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990).
Evidence of a pervasive policy by the respondent of
encouraging safety complaints may assist in persuading the
factfinder that retaliation was not a factor in the decision to
take adverse employment action against a complainant. See
id.
The mere fact that the respondent takes an adverse
employment action that deviates from company policy does not, in
itself, establish retaliatory motive. See id.
The fact that adverse employment action may be reduced as a
result of a complainant's protected activity does not establish
actionable retaliation where it is established that the original
punishment was warranted for legitimate and nondiscriminatory
reasons. See id. (Complainant's punishment may
have been reduced as a result of his threat to go to the NRC).
COMPLAINT; LITIGATION OF ISSUES NOT STATED IN ORIGINAL
COMPLAINT [STAA Digest II B 4]
In Brown v. Wilson Trucking Corp., 94-STA-54
(ALJ Oct. 2, 1995), the ALJ rejected the Respondent's contention
that the hearing should be limited to the one issue stated in the
original complaint. The Regional Administrator's report
indicated that multiple issues had been considered as part of the
investigation, which gave the Respondent adequate notice. The
ALJ also noted that due process is not offended if the parties
fairly and fully litigated the issue at a hearing.
CONTINUANCE; ALJ'S DISCRETION TO DENY CONTINUANCE FOR FURTHER
DISCOVERY OR TO RETAIN AN ATTORNEY
[N/E Digest
VII D 5]
In Saporito v. Florida
Power & Light Co.,
93-ERA-23 (Sec'y Sept. 7, 1995), the ALJ was found not to have
abused his discretion in denying the Complainant's request for a
continuance to engage in further discovery. The Complainant had
six months to engage in discovery and fully availed himself of
that opportunity; Complainant's assertion that he lacked funds to
engage in further discovery was rejected because there was no
indication that his economic condition would change to permit him
to engage in further discovery; Complainant's assertion that the
NRC was investigating his allegations and that investigation
might provide him with evidence of blacklisting was rejected
because there was no documentary evidence that such an
investigation was being conducted.
The Secretary also found no abuse of discretion by the ALJ
in denying a request for a continuance to retain an attorney
where the record supported the ALJ's finding that the Complainant
had not made a sufficient effort to retain counsel, there was no
assurance that he would succeed in retaining counsel, and
considering the Complainant's pro se status, he had adequately
represented himself in the case.
CREDIBILITY; ALJ'S OPPORTUNITY TO OBSERVE DEMEANOR
[STAA Digest
II H 4]
The ALJ is in the best position to evaluate the demeanor of
witnesses, since he or she sees them in person and hears them
testify. Where the ALJ's credibility determinations are based on
a fair reading of the record and are supported by an
"articulate, cogent, and reliable analysis," the
Secretary will accept them. Williams v. Southern Coaches,
Inc., 94-STA-44 (Sec'y Sept. 11, 1995).
DECISION NOT TO REHIRE; PERMISSIBILITY WHERE KNOWLEDGE OF
PRIOR PROTECTED ACTIVITY, BUT ALSO OF PRIOR CONFLICTS IN
WORKPLACE
[N/E Digest
XIII B 8]
In Gibson v. Arizona
Public Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept.
18, 1995), the Complainant was not selected for possible
reemployment. The decision was made by
a supervisor who previously had been a foreman in the
Complainant's department, and although he did not directly
supervise the Complainant, was aware of the Complainant's role in
"childish bickering" and in violating a memo that had
directed employees to stop such activities. He testified
candidly that the Complainant told him about the contacting the
NRC and using it as leverage to keep his job.
The Secretary found that the Complainant failed to carry his
burden of showing that the decision not to rehire was a pretext
for retaliation where the Complainant had less nuclear experience
-- and less recent experience -- than any of those selected for
the job. The Secretary also noted that the supervisor took into
account Complainant's statements about not being able to work
with certain people and his perception that the Complainant spent
too much time talking rather than working.
DISCOVERY; RESPONDENT'S E-MAIL
[N/E Digest
VII A 2]
In Freels v. Lockheed Martin Energy Systems,
Inc., 94-ERA-6 and 95-CAA-2 (ALJ Aug. 22, 1995), the
Complainant's discovery requests included searches of E-mail.
The parties presented experts differing considerably concerning
the amount of time necessary to program and run the searches.
The ALJ found in his decision recommending the grant of summary
decision against the Complainant that in view of the extensive
discovery already completed, the lack of specificity in the
Complainant's request for a search of the E-mail, and the time
required for such a search, the discovery request would be
denied. The Complainant had already deposed eight employees and
received about 8,000 pages of documents. The Complainant had not
identified any particular message, time frame, or individual in
requesting a search of 13 months of E-mail, comprising more than
10 million messages.
DISCOVERY; SANCTIONS FOR FAILURE TO DISCLOSE; ALJ'S
RESPONSIBILITY TO ADMIT EVIDENCE TO AVOID REMAND [N/E Digest VII A 3; VII D 2]
In Fugate v.
Tennessee Valley Authority, 93-ERA-9 (Sec'y
Sept. 6, 1995) (complaint dismissed on other grounds), the
ALJ refused to allow the Complainant to introduce evidence
of an alleged discriminatory act because the Complainant
failed to mention it during discovery. The Secretary held
that the ALJ should have admitted this evidence because
the Respondent's motion for sanctions for failure
to answer an interrogatory relating to this issue
indicated that it must have had actual knowledge of the
instance prior to the hearing;
the Complainant had consistently maintained that
there were other unnamed instances of discrimination;
the record did not reflect that the Respondent had
ever moved to compel discovery and that it had waited
19 months after the complaint was filed to commence
discovery.
The Secretary also noted that, as a matter of judicial
efficiency, evidence such as was prohibited in this case
should be admitted to help avoid the necessity of a remand.
In Moody v. Tennessee
Valley Authority, 93-ERA-14 (Sec'y June 28, 1995),
the Respondent moved to dismiss after the Complainant failed to
appear for a deposition and based on Complainant's statements
that he intended to dismiss the complaint. Complainant responded
to the ALJ's order to show cause why the complaint should not be
dismissed by asking for more time to retain counsel. The ALJ
allowed 30 additional days for the Complainant to retain counsel,
but warned that if Complainant failed to notify the ALJ that he
had retained counsel and desired to pursue the claim, the
complaint would be dismissed. The Complainant did not provide
the required notification, and the Secretary accepted the ALJ's
recommendation of dismissal for abandonment pursuant to 18 C.F.R.
§ 18.39(b).
DISMISSAL; CONVERSION OF RULE 12(b)(1) MOTION INTO MOTION FOR
SUMMARY DECISION; MOVANT'S BURDEN TO ESTABLISH
"ABSENCE" OF EVIDENCE TO SUPPORT NONMOVANT'S CASE [N/E Digest VII C 1]
In the September Newsletter, it was noted that the
Secretary held in Stephenson v. National
Aeronautics & Space Administration, 94-TSC-5
(Sec'y Aug. 21, 1995), that even though the Complainant had
failed to counter Respondent's Fed. R. Civ. P. 12(b)(1)
motion to dismiss based on Complainant's not being an
employee within the meaning of the TSCA, that defense could
not be raised prior to hearing because the Respondent had
previously raised a 12(b)(6) motion to dismiss. See
Fed. R. Civ. P. 12(g).
The Secretary reconsidered that ruling in Stephenson v. National
Aeronautics & Space Administration, 94-TSC-5
(Sec'y Sept. 28, 1995) (Order of Remand). The Secretary
concluded that the Respondent's Rule 12(b)(1) motion must be
converted into a Rule 12(b)(6)/Rule 56 motion because the
issue of coverage as an employee is intertwined with the
merits of the case. The Secretary further concluded that
where, as here, the movant presents matters outside the
pleadings, Rule 12 requires that the filing be treated as a
motion for summary judgment under Rule 56, or more precisely
under a DOL proceedings, under 29 C.F.R. § 18.40.
The Secretary then found that the movant's burden under
the summary judgment standard is to demonstrate
"'"an absence of evidence to support the nonmoving
party's case"'". Slip op. at 5, quoting EEOC
v. New Cherokee Corp., 829 F. Supp. 73, 77 (S.D.N.Y.
1993), which in turn was quoting Celotex Corp. v.
Caltrett, 477 U.S. 317, 325 (1986).
EMPLOYEE; COVERAGE OF MESSENGER UNDER STAA
[STAA Digest
VII A 2 a]
In Caimono v. Brinks, Inc., 95-STA-4 (ALJ
Sept. 7, 1995), the ALJ concluded that a messenger for an armored
car company who rode in the car to make deliveries, was not an
employee within the meaning of the whistleblower provision of the
STAA. The ALJ found only two prior cases involving complainants
other than drivers. Both involved mechanics, who were
specifically named in the statutory definition as an employee.
The ALJ concluded that absent being specifically named in the
statutory definition, "one employed by a motor carrier . . .
should have to positively demonstrate that his employment
directly affected motor vehicle safety. . . ." Slip op. at
2.
EMPLOYMENT RELATIONSHIP; SUBCONTRACTOR [N/E Digest XIV A 2 d]
In Stephenson v.
National Aeronautics & Space Administration,
94-TSC-5 (Sec'y Sept. 28, 1995), the Secretary reconsidered
a decision that even though the Complainant had failed to
counter Respondent's Fed. R. Civ. P. 12(b)(1) motion to
dismiss based on Complainant's not being an employee within
the meaning of the TSCA, that defense could not be raised
prior to hearing because the Respondent had previously
raised a 12(b)(6) motion to dismiss. Although the
reconsideration decision focused on the relationship between
12(b)(1), 12(b)(6) and Rule 56 and the standards applied to
such motions, the Wage and Hour Administrator position in a
request for opportunity to participate in the
reconsideration may be of interest. Request by the Wage
and Hour Administrator for Opportunity to Participate
(filed in Case No. 94-TSC-5 Sept. 22, 1995). The ALJ had
originally recommended dismissal on the ground that the
Complainant was an employee of Martin Marietta and not NASA,
relying on Reid v.
Methodist Medical Center of Oak Ridge, 93-CAA-4
(Sec'y Apr. 3, 1995), appeal docketed No. 95-3648
(6th Cir. June 1, 1995). The Administrator raised the
question whether the subcontractor relationship between the
Complainant's employer and the Respondent makes the case
distinguishable from Reid. The Administrator
suggested that employer liability may be found pursuant to
Hill v. Tennessee Valley Authority, 87-ERA-23 (Sec'y
May 24, 1989). The Secretary did not address this point in
the September 29, 1995 Order of Remand.
See alsoVarnadore v. Oak Ridge National
Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995) (ALJ
recommended dismissal of DOE where Complainant was employed
by Martin Marietta, which operates DOE's Oak Ridge
facility).
INTENTIONAL VIOLATION; DENIAL OF RELIEF TO COMPLAINANT [N/E Digest XIX]
Where the Complainant participated in cheating on a EPA
mandated CFC certification test, the ALJ recommended that the
complaint be dismissed pursuant to 42 U.S.C. § 7622(g). The
ALJ rejected the Complainant's argument that the Complainant
should be allowed to prevail so as not to discourage other
wrongdoers from coming forward if they have a change of heart.
Although the ALJ recognized that "the policy behind this
argument has current," he concluded that "[a]n
intentional violator who experiences a change of heart is the
only class of persons to whom subsection (g) could apply."
Dotson v. Anderson Heating and Cooling, Inc., 95-
CAA-11 (ALJ Oct. 2, 1995).
JURISDICTION; NO SUBJECT MATTER JURISDICTION OVER EMPLOYMENT
OF CONSULTANT ALLEGEDLY IN CONFLICT WITH ETHICS REGULATIONS
[N/E Digest II B 2]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that the
former Director of the Office of Administrative Appeals is
violating ethics regulations by acting as a consultant to one of
the Respondents. The ALJ recommended a finding of no subject
matter jurisdiction.
MOTIVE; NEGATIVE PUBLICITY
[N/E Digest XI B 2 b vi]
An employer may not take adverse action against an employee
whose protected reports to the news media cause negative
publicity. Hoffman v.
Bossert, 94-CAA-4 (Sec'y
Sept. 19, 1995) (Complainant was not rehired because, after his
layoff, he went to the newspapers, causing general hysteria about
asbestos in school roofing materials).
PARTIES; LIABILITY OF UNINCORPORATED DIVISIONS OR
DEPARTMENTS, PARENT COMPANIES; INDIVIDUAL EMPLOYEES [N/E Digest XIV B 4 b and XIV B 4 j]
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of
the following parties:
an unincorporated division of the Complainant's
employer;
unincorporated departments of the Complainant's
employer;
parent companies of the Complainant's employer;
an individual employed by the Complainant's employer;
and
a consultant (the former Director of the Office of
Administrative Appeals) for the Complainant's employer.
The ALJ indicated that any discriminatory acts committed by
these organizations or individuals would be attributed to the
Complainant's employer, which is the entity liable for any
violations. The complaint also named the Department of Energy.
The ALJ similarly recommended dismissal of a satellite office of
DOE and of the Secretary of Energy.
PETITION FOR JUDICIAL REVIEW; TIMELINESS
[N/E Digest
VIII C 2 d]
In Bartlik v. United States Dept. of Labor, 62
F.3d 163 (1995), the court held that Civil Rule 6(a) and
Appellate Rule 26(a) do not expand or enlarge the court's
jurisdiction, but simply provide the court and the parties with
a means of determining the beginning and end date of a statute of
limitations prescribed elsewhere in law. In
Bartlik, a 42 U.S.C. § 5851 action, the
terminal date for filing a petition for a review fell on a Sunday
by the calendar. The Court applied Rule 26(a) to find that a
filing the following Monday was timely.
PRETEXT; SERIOUSNESS OF COMPLAINANT'S TRANSGRESSION
[STAA Digest
IV C 1]
Where, although the Complainant's transgression appeared
mild and hardly deserving of discharge, but the Complainant
failed to show by a preponderance of the evidence that the
Respondent's stated reason for the discharge was pretextual, the
complaint was dismissed. Williams v. Southern Coaches,
Inc., 94-STA-44 (Sec'y Sept. 11, 1995).
PRETEXT; SHIFTING EXPLANATIONS OFTEN REVEAL RETALIATORY
MOTIVE
[N/E Digest
XI C 1]
In Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept.
19, 1995), the Respondent testified that his only reasons for
laying off the Complainant were lack of work and low seniority.
Respondent's counsel introduced other evidence to the effect that
the Complainant was rude on occasion. The ALJ found this
confusing, so he questioned counsel at length about the
Respondent's theory of the case. In the recommended decision,
the ALJ found that the testimony about the Complainant's demeanor
was "inappropriate and irrelevant."
The Secretary disagreed, finding that this shift in the
theory of the Respondent's case was relevant because it strongly
indicated that lack of work and low seniority were a pretext.
PROTECTED ACTIVITY; BYPASSING THE CHAIN OF COMMAND
[N/E Digest
XII D 1 d]
An employee who bypasses the company's chain of command to
with a complaint about violation of an environmental law is
engaged in protected activity. Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995) (Complainant
informed school district about asbestos in roofing materials
prior to informing his boss).
PROTECTED ACTIVITY; COVERAGE OF MESSENGER UNDER STAA
[STAA Digest
V B 2 c]
In Caimono v. Brinks, Inc., 95-STA-4 (ALJ
Sept. 7, 1995), the ALJ concluded that the activities of a
messenger for an armored car company are generally not covered by
the whistleblower provision of the STAA insofar as they relate to
personal safety from outside interference as opposed to potential
injury from the operation of the vehicle. The ALJ also concluded
that, even assuming Complainant's allegations of unsafe
conditions were covered activities, he had not carried his burden
showing that he had a reasonable apprehension of serious
injury to himself or the public.
PROTECTED ACTIVITY; INTERNAL COMPLAINT DEFINED
[N/E Digest
XII B 1 b]
An internal complaint is one lodged with a supervisor of the
company itself. An external complaint is one lodged with an
outside agency, such as the NRC. Kahn v. United States
Secy. of Labor, 1995 U.S. App. LEXIS 24111 (7th Cir.
1995) (recognizing that other circuits and the Secretary had
treated pre-1992 ERA complaints as protected activity).
PROTECTED ACTIVITY; PERSONNEL ISSUE [N/E Digest XII D 13]
In order to prevail in an environmental whistleblower
case, the complainant must first show that he or she engaged
in protected activity. In Fugate v. Tennessee
Valley Authority, 93-ERA-9 (Sec'y Sept. 6,
1995), the complaint was dismissed because the Complainant
neither pled nor presented any evidence from which one could
conclude that he engaged in protected activity within the
meaning of the environmental whistleblower provisions. The
Complainant made an internal complaint regarding a personnel
issue (the hiring of "outside" fire fighters), not
a safety concern.
PROTECTED ACTIVITY; REFUSAL TO PLEAD GUILTY TO CITATION
[STAA Digest
V B 1 c iv]
In Schuler v. M &
P Contracting, Inc.,
94-STA-14 (ALJ June 14, 1995), adopted (Sec'y Sept. 27,
1995), the Complainant failed to establish that he engaged in
protected activity when he refused to plead guilty to an overload
citation. In order to qualify as protected activity, the
Complainant was required to establish that the refusal to plead
guilty was based in part on safety concerns. The Complainant
only submitted a signed statement that the refusal was
precipitated by a safety concern after he became aware that it
was a required element of a STAA whistleblower complaint.
Previously, he repeatedly indicated that his reasons were a
belief that the Respondent had a contractual obligation to pay
the fine and that he did not want it to affect his driving
record.
PROTECTED ACTIVITY; SIMILAR CONCERNS RAISED BY OTHER WORKERS
IN PERFORMANCE OF JOB
[N/E Digest
XII C 5]
The fact that many other workers raised similar internal
safety concerns in the course of performing their jobs, although
relevant to causation issues, does not render a complainant's
concerns unprotected. Gibson v. Arizona Public
Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18,
1995), citing Jopson v. Omega
Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995).
REMEDY; ESSENTIAL PARTY THAT DID NOT PARTICIPATE IN
DISCRIMINATION
[N/E Digest
XVI A 2]
In Klock v. Tennessee Valley Authority,
95-ERA-20 (ALJ Sept. 29, 1995), the Complainant named both the
nuclear power plant and his employer, a contract provider of
startup engineers, as Respondents. At the commencement of the
hearing, the contract provider moved for summary judgment on
the ground that it did not take adverse action against the
Complainant. The Complainant conceded that the contract provider
did not discriminate against him in violation the ERA. The ALJ
denied the motion, however, on the ground that the contract
provider may be a necessary party to formulating a remedy. The
contract provider renewed the motion after the conclusion of the
hearing, and the ALJ concluded, upon reconsideration, that since
the contract provider did not violate the ERA, the Secretary has
no jurisdiction to order it to take any action toward the
complainant. The ALJ also concluded that the contract provider
was not essential to formulating a remedy, as the power plant
could be ordered to reinstate the complainant either as a
contract employee or as its own employee.
RESPONDENT'S AWARENESS OF PROTECTED ACTIVITY
[N/E Digest
XI A 2 c]
In Webb v. Carolina
Power & Light Co.,
93-ERA-42 (Sec'y July 14, 1995), the ALJ granted summary decision
based in part on his finding that the Complainants failed to
establish that the Respondent was aware of his protected
activity. Specifically, the ALJ concluded that Complainant's
allegation of Respondent's knowledge was based on assumptions and
speculation. The Secretary noted that a complainant may make the
required showing of a respondent's knowledge "either by
direct or by circumstantial evidence." Samodurov v.
General Physics Corp., 89-ERA-20, slip op. at 11
(Sec'y Nov. 16, 1993). On the basis of Complainant's affidavits
and deposition submitted in support of and in opposition to the
motion, the Secretary found that there was a genuine issue of
material fact concerning this issue.
REVIEW BY SECRETARY; NOT NECESSARY TO FILE PETITION FOR
REVIEW
[N/E Digest VIII B 1]
Since cases brought under the ERA and other environmental
whistleblower provisions are automatically reviewed by the
Secretary, see 20 C.F.R. § 24.6, it is not necessary for a
party to file a petition for review of an ALJ's recommended
decision and order. Varnadore v. Oak Ridge National
Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995).
SETTLEMENT; ALLEGATION OF WRONGFUL MODIFICATION OF TERM
[N/E Digest
XVII G 5]
In Merritt v.
Mishawaka Municipal Utilities, 93-SDW-3 (Sec'y Sept.
11, 1995) (Secretary's order has incorrect case number of
"93-SWD-3"), the Complainant complained
that the Respondents had wrongfully modified an agreed upon
response to be used in answering inquiries from potential
employers regarding the Complainant by having the General Manager
rather than the Director of Human Resources sign the letter,
thereby "personalizing" the response letter. Since the
Complainant did not allege that the Respondents materially
changed the body of the letter, the Secretary found the
Complainant's objection to be meritless. The Secretary also
found that, assuming the change in signature was outside the
scope of the settlement, the alleged breach was not sufficient to
affect his determination of the fairness, adequacy and
reasonableness of the agreement.
SETTLEMENT; BINDING EFFECT OF SETTLEMENT REACHED IN U.S.
DISTRICT COURT
[N/E Digest
XVII G 9]
In Merritt v.
Mishawaka Municipal Utilities,
93-SDW-3 (Sec'y Sept. 11, 1995) (Secretary's order has incorrect
case number of "93-SWD-3"), the Complainant signed an
agreement releasing the Respondents "of and from any an all
claims, be the same known or unknown, of whatever kind or nature,
which the [Complainant] may now have or hereafter acquire by
reason of any events occurring prior to the date of this
agreement. . . ." This agreement specifically released a
case then pending in U.S. District Court. The Secretary agreed
with the ALJ's conclusion that the agreement was intended also to
settle the Complainant's whistleblower complaint before the
Department.
SETTLEMENT; EQUITABLE POWER TO COMPEL COMPLAINANT TO RETURN
MONIES PAID PRIOR TO SECRETARIAL REVIEW AND DISAPPROVAL OF
SETTLEMENT
[N/E Digest
XVII G 5]
In Corder v. Bechtel
Energy Corp., 88-ERA-9 (Sec'y Sept. 12, 1995)
(petition for review filed, 5th Cir.), the ALJ ordered the
Complainant to return monies paid to the Complainant by the
Respondent prior to the Secretary's review, and disapproval, of a
settlement. The Complainant did not comply with the order, and
the ALJ recommended dismissal. The Secretary rejected the ALJ's
recommendation on the basis of Macktal v. Brown & Root,
Inc., 86-ERA-23 (Sec'y July 11, 1995).
In Macktal, the Secretary held that in the
absence of a broad delegation of rulemaking authority, neither an
ALJ nor the Secretary has the power to enter an order directing a
complainant to return settlement monies for equitable reasons.
The Secretary held that "[a]ny rule or order issued by the
Secretary under the [ERA] . . . must be directly related to a
specific provision of the statute and clearly necessary to
implement express statutory terms." Slip op. at 5.
SOVEREIGN IMMUNITY UNDER THE ERA; DEPARTMENT OF ENERGY
[N/E Digest
XX E]
In Jackson v. Science Applications International
Corp., 95-ERA-24 (ALJ Sept. 5, 1995), one the Respondents
was the Department of Energy (DOE). The ALJ recommended
dismissal of DOE on the ground that Congress had not
unequivocally waived the Government's sovereign immunity, such
that 42 U.S.C. § 5851 could be interpreted as including DOE
as an employer subject to that provision. The ALJ did not reach
the question of whether other United States Government agencies
are subject to the whistleblower provision of the ERA.
To the same effect: Varnadore v. Oak Ridge National
Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995) (DOE was one of
multiple Respondents).
SUMMARY DECISION; GOVERNING LAW
[N/E Digest
VII C 1]
A motion for summary decision in an ERA whistleblower case
is governed by 29 C.F.R. § 18.40 and 18.41. A party
opposing a motion for summary decision "must set forth
specific facts showing that there is a genuine issue of fact for
the hearing." 18 C.F.R. § 18.40(c). Under the
analogous Fed. R. Civ. P. 56(e), the non-moving party "may
not rest upon mere allegations or denials of his pleading, but
must set forth specific facts showing that there is a genuine
issue for trial . . . . Instead, the [party opposing summary
judgment] must present affirmative evidence in order to defeat a
properly supported motion for summary judgment."
Anderson v. Liberty Lobby, 477 U.S. 242, 256-257 (1986).
The non-moving party's evidence, if accepted as true, must
support a rational inference that the substantive evidentiary
burden of proof could be met. "[W]here the non-moving party
presents admissible direct evidence, such as through affidavits,
answers to interrogatories, or depositions, the judge must accept
the truth of the evidence set forth; no credibility or
plausibility determination is permissible." Dewey v.
Western Minerals, Inc., No. 90-35252, 1991 U.S. App.
LEXIS 1399 (9th Cir. Jan. 29, 1991), citing T.W. Elec.
Serv. v. Pacific Elec. Contractor, 809 F.2d 626, 631 (9th
Cir. 1987). On the other hand, if the non-movant "fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial," there is no genuine
issue of material fact and the movant is entitled to summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986).
SUMMARY DECISION; OPPORTUNITY FOR RELEVANT DISCOVERY [N/E Digest VII C 1]
In Stephenson v.
National Aeronautics & Space Administration,
94-TSC-5 (Sec'y Sept. 28, 1995) (Order of Remand), the
Secretary noted that in cases of summary disposition all
parties must be given reasonable opportunity to present all
material pertinent to such a motion. Pleadings,
depositions, answers to interrogatories and admissions are
considered in conjunction with the affidavits. The
Secretary noted that whenever the moving party denies access
to information by means of discovery to a party opposing the
motion, the ALJ may deny the motion. 29 C.F.R. §
18.40(d).
TIMELINESS; CONTINUING VIOLATION THEORY AND BLACKLISTING
[N/E Digest
III C 2]
The timeliness of an ERA complaint may be preserved under
the continuing violation theory "where there is an
allegation of a course of related discriminatory conduct and the
charge is filed within [one hundred and eighty] days of the last
discriminatory act." Thomas v. Arizona Public Service
Co., 89-ERA-19, slip op. at 13 (Sec'y Sept. 17, 1993);
Garn v. Benchmark Technologies, 88-ERA-21, slip op. at 6
(Sec'y Sept. 25, 1990) The continuing violation theory
particularly applies to complaints of blacklisting because
"there may be considerable lapse of time before a
blacklisted employee has any basis for believing he is the
subject of discrimination." Egenrieder v. Metropolitan
Edison Co., 85-ERA-23, slip op. at 8 (Sec'y Apr. 20, 1987).
In Webb v. Carolina
Power & Light Co., 93-ERA-42 (Sec'y July 14,
1995), the ALJ improperly granted summary decision on the issue
of timeliness where there were disputed issues of fact concerning
an alleged instance of blacklisting within the 180 day
limitations period, and when the Complainant knew, or should have
known, that he was not selected for a position.