WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

October 5, 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. See Gibson 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.

DISMISSAL; ABANDONMENT
[N/E Digest XVIII C 5]

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 also Varnadore 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).

Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995).

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.