WHISTLEBLOWER NEWSLETTER
United States Department of Labor
Office of Administrative Law Judges Law Library

ATTORNEY'S FEES PAID ON PRELIMINARY ORDER; BOARD'S AUTHORITY TO ORDER REPAYMENT; SANCTION FOR FAILING TO REPAY
[N/E Digest XVI E 7]

In Varnadore v. Oak Ridge National Laboratory, 94-CAA-2 and 3 (ARB Sept. 6, 1996), Respondent had been ordered by the Secretary to pay Complainant's attorney fees following the ALJ's recommended decision that the complaint had merit. See 42 U.S.C. § 5851(b)(2)(A). After the ALJ's recommendation of relief was rejected by the Board, Respondent filed a motion for an order requiring repayment of the attorney fees. The Board granted Respondent's motion, holding that the whistleblower provision of the ERA requires that a Preliminary Order granting relief be rescinded when the Board dismisses all of a complainant's claim, and that the Board has the authority to issue such an order requiring repayment of attorney's fees. The Board distinguished Macktal v. Brown & Root, Inc., 86-ERA-23 (Sec'y July 11, 1995), in which the Secretary held that neither an ALJ nor the Secretary had the authority to order a complainant to return monies paid on a settlement that the Secretary had later disapproved. The Board focused on the fact that Macktal involved a private agreement between the parties, whereas the instance situation involved the continuing validity of an order issued by the Secretary pursuant to explicit statutory authority.

The Board observed that the Secretary stated in the Preliminary Order in response to Respondent's concern about its ability to recoup the attorneys fees if no violation was found to have occurred, that "given the authority contained in 29 C.F.R. § 18.36 (1994) to exclude an attorney from appearing before an ALJ for refusal to comply with directions, it is unlikely that recoupment of attorney''s fees will present a significant problem."

COMPENSATORY DAMAGES; COMPARATIVE AWARD
[STAA Digest IX B 4]

In Ass't Sec'y & Bigham v. Guaranteed Overnight Delivery, 95-STA-37 (ARB Sept. 5, 1996), the Board stated that the ALJ concluded that although Complainant experienced emotional distress and mental anguish as a result of his termination, his request for $48,000 in compensatory damages was "ludicrous" The Board stated that the ALJ had observed that Complainant had only cited one whistleblower decision to support this request.

The Board noted that courts have awarded compensatory damages for emotional distress caused by wrongful discharge in amounts greater than the amount requested by the prosecuting party, and held that it is "appropriate to review other types of wrongful termination cases to assist in the analysis of the appropriate measure of compensatory damages in whistleblower cases." The Board cited three Court of Appeals decisions in which the amount of $50,000 was discussed. It then stated that it had reviewed the relevant evidence and considered the facts in light of awards in the appellate court decisions as well as other whistleblower decisions involving emotional distress, and concluded that Complainant should be awarded $20,000 in compensatory damages.

COMPENSATORY DAMAGES; COMPARATIVE AWARDS
[N/E Digest XVI D 4 a]

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), the Board affirmed the ALJ's recommendation to award Complainant $40,000 in compensatory damages where a psychologist's unrebutted testimony was that Complainant suffered post-traumatic stress related to his whistleblower activities, and had strained relationships with his children and wife. Of note earlier in the decision, is the Board's discussion of Complainant's inability to work as a result of the post-traumatic stress.

[Editor's note: In his recommended decision, the ALJ relied, in part, on the decision in Fleming v. County of Kane, State of Illinois, 898 F.2d 553 (7th Cir. 1990), for the proposition that damages for emotional stress in cases with similar contexts have ranged from $500 to over $40,000]

COMPENSATORY DAMAGES; CONSULTING PHYSICIAN
[N/E DIGEST XVI D 3 c]

Consulting a psychologist or other professional on a regular basis is not a prerequisite to entitlement to compensatory damages for mental or emotional distress. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

COMPENSATORY DAMAGES; EMOTIONAL DISTRESS; AGGRAVATION
[N/E DIGEST XVI D 3 a]

Employer's contentions that it did not cause Complainant's emotional distress, but that this had occurred when he was a whistleblower while working for other employers prior to his dealings with Employer, was refuted by psychologist who found that Complainant's difficulties began shortly after the problems with Employer. Employer offered no evidence on other theories of causation. Even if Complainant had experienced some stress as a result of his earlier whistleblowing while employed by others, Employer was still liable to compensate him if its discriminatory treatment aggravated that stress and caused additional pain and suffering. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

COMPENSATORY DAMAGES; MEDICAL EXPENSES
[N/E DIGEST XVI D 3 c]

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), Respondent was required to restore any benefits to which Complainant would have been entitled, including out of pocket medical expenses that would have been covered by the health insurance available to him as an employee of Respondent. Respondent was required to pay these expenses incurred up to the date of the final judgment.

CONTINUANCE; GROUNDS FOR
[N/E Digest VII D 5]

The Board in Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), held that continuances are to be granted only in cases of "prior judicial commitments or undue hardship, or a showing of other good cause." 29 C.F.R. § 18.28(a). The ALJ was found not to have abused his discretion in denying a continuance to Complainant, who had a new position as a part-time college professor and did not want to jeopardize his career with the intensity of whistleblower hearing during a work week. Complainant requested that the hearing be held during the college's spring break. The ALJ was not available that week, and Complainant did not state that it was impossible for him to attend the hearing or alter his part time work schedule.

DAMAGES; BACK PAY; DISCRIMINATION IMPAIRS COMPLAINANT'S ABILITY TO WORK IN INDUSTRY
[N/E DIGEST XVI C 2]

Back pay award continued to date of final judgment where Employer's failure to hire Complainant prevented him from working in the nuclear industry to the present. Complainant was not hired because he refused to sign a waiver releasing Employer for any and all liability. Because of this refusal, Employer denied Complainant unescorted access to the nuclear facility. Employer notified an agency of this denial, which ensured that other employers would learn Complainant had been denied unescorted access. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

DAMAGES; BACK PAY; SHORT TERM PROJECT; EVIDENCE OF CONTINUED EMPLOYMENT OF CONTRACTORS
[N/E DIGEST XVI C 2 b i]

On computing back pay award, the Administrative Review Board looked at similarly situated employees to determine whether Complainant's employment with Employer would have continued after the end of the contract. Complainant's contract was for an outage which actually lasted one month. The ALJ and Secretary both found that Employer regularly rehired or retained contract workers such as Complainant, and this evidence demonstrated that Complainant's employment would have continued after the completion of the original contract. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

DAMAGES; INTERIM EARNINGS; DUTY TO MITIGATE
[N/E DIGEST XVI C 2 c i and v]

Mitigation of damages by seeking suitable employment is a duty of victims of employment discrimination. Interim earnings or an amount earnable with reasonable diligence are reductions to a back pay award. A complainant may be "expected to check want ads, register with employment agencies, and discuss potential opportunities with friends and acquaintances." Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), quoting Helbing v. Unclaimed Salvage and Freight Co., Inc., 489 F.Supp. 956, 963 (E.D. Pa. 1989), quoting Sprogis v. United Air Lines, 517 F.2d 387, 392 (7th Cir. 1975).

Although Complainant in Doyle only earned $3000 in six years, the Board found that he made diligent efforts to secure employment where he could not find employment in the nuclear industry due to the discrimination, and where his psychological state made it difficult for him to find and keep jobs in other fields. A psychologist's testimony about post-traumatic stress was unrefuted, and it was understandable that Complainant did not have great success in finding alternative employment. Employer could deduct all amounts Complainant earned in interim employment through the date of the final judgment.

DAMAGES; PER DIEM PAYMENTS NOT AWARDED WERE COSTS NOT INCURRED
[N/E DIGEST XVI C 3]

Back pay award did not include per diem payments where Complainant did not incur the expenses of living away from home. Thus, those payments were not necessary to make Complainant whole. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996) (Respondent had refused to hire Complainant).

DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; PROMOTIONS
[N/E DIGEST XVI C 2 d]

Back pay should include a promotion to which a complainant was entitled. In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), however, Complainant did not show that he was entitled to a promotion to a health physics technician, and he was not entitled to pack pay based on a "lost" promotion.

DAMAGES; HYPOTHETICAL EMPLOYMENT HISTORY; SALARY INCREASES
[N/E DIGEST XVI C 2 d]

Recognizing that back pay normally includes regular annual increases that an employee would receive absent the discrimination, the Board found that Complainant was entitled to receive back pay calculated according to the average hourly amount earned by similarly situated employees in the nationwide nuclear industry in each year since his discrimination. Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

DISCOVERY; ALJ'S DISCRETION IN LIMITING
[N/E Digest VII A 2]

An ALJ is given wide discretion to limit discovery and his or her ruling will be reversed only when arbitrary or an abuse of discretion. In Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), the Board found that the ALJ did not abuse his discretion in declining to compel responses to Complainant's document requests. The ALJ had not ruled on Complainant's initial discovery request that was styled "Motion for Turnover of Documents," because a party must begin with a request for document production, show that the request was not compiled with, and only then request an order compelling production. After granting a continuance, the ALJ admonished the parties to do their discovery promptly and correctly because he was not inclined to grant further hearing postponements; later, the ALJ denied motions to compel from both parties because they were not submitted in time for him to address the issues prior to the hearing.

EMPLOYER; JOINT EMPLOYER
[N/E Digest XIV B 2]

In Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), NASA was properly dismissed because it was not Complainant's employer under the Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. 1344 (1992) test. Another company evaluated Complainant's work, assigned him additional work, provided employee benefits, and paid him. Complainant contended that NASA was a joint employer because an undergraduate co-op student purportedly supervised him on a project. The Board found that the evidence did not establish that the co-op student supervised Complainant.

In a footnote, the Board observed that where a company interferes with its contract with a separate company such that it caused the complainant's employment to be terminated, the interfering company fits within the ERA's definition of "employer." Slip op. at 6 n.4, citing Hill & Ottney v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989). In the instant case, however, there was no allegation of interference.

EXCLUSION OF WITNESS; HARMLESS ERROR
[N/E Digest VII D 2]

In Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), it was, at most, harmless error for the ALJ to exclude the testimony of Complainant's pastoral counselor who would have testified about Complainant's symptoms of depression and anxiety, because this testimony was only relevant to compensatory damages -- an issue only relevant if Complainant prevailed. Complainant had not prevailed on the merits. It was also harmless error for the ALJ to have excluded the testimony of a retired special agent of the Office of Inspector General of a Federal agency where the federal Respondents in the case had been properly dismissed for a reason unrelated to the agent's proposed testimony.

INTERLOCUTORY APPEAL
[N/E Digest VIII B 3]

In Holub v. Babcock & King, Inc., 93-ERA-25 (ARB July 8, 1996), the Board followed the Secretary's practice in declining to accept interlocutory appeals because of a strong policy disfavoring piecemeal appeals. The decision leaves open the question whether the Board has the discretion to entertain an interlocutory appeal in an appropriate case.

PROCEDURE; REOPENING OF RECORD
[N/E DIGEST IX D 1]

Complainant's motion to supplement the record 13 or 14 months after it closed was denied as he did not show that he could not have obtained the evidence prior to the closing of the record. 29 C.F.R. § 18.54(c). Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996).

RECUSAL; ALJ LETTER TO PARTIES NOTIFYING THEM OF RECENT DECISION
[N/E Digest VIII A 5]

In Robinson v. Martin Marietta Services, Inc., 94-TSC-7 (ARB Sept. 23, 1996), Complainant asserted that the ALJ should have recused himself after he sent a letter to counsel for Respondents, stating that the Secretary's decision in Reid v. Methodist Hospital Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), pet. filed, No. 95-3648 (6th Cir. June 1, 1996) "may be relevant to some of the procedural issues" in the instant case. The ALJ attached a copy of the decision to the letter. He also sent a copy of the letter to Complainant's counsel, but did not attach a copy of the decision, explaining that Complainant's counsel had been served with the Reid decision because he was also counsel in that case.

The Board held that the ALJ's letter "simply notified all of the counsel in this case about a recent decision by a binding authority relating to the determination of an 'employer' within the CAA's employee protection provision [an issue in the case]". Slip op. at 5. The Board held that the ALJ did not err in denying recusal because the letter did not show prejudgment of the facts or the law.

REMEDIES; EXPUNGEMENT; POSTING
[N/E DIGEST XVI G 2 a]

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), Respondent was ordered to expunge from Complainant's records all derogatory or negative information related to the failure to hire him, to provide neutral employment references, not to divulge any information pertaining to not hiring Complainant or denying him unescorted access to a nuclear facility, and to post the ARB's decision.

REMEDIES; REINSTATEMENT NOT FEASIBLE; FRONT PAY; HOW TO DETERMINE LENGTH AND AMOUNT OF FRONT PAY AWARD
[N/E DIGEST XVI B 4]

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996), reinstatement of Complainant was not practical due to a corporate reorganization, so Complainant was entitled to front pay. The Board rejected the ALJ's reasoning that five years of front pay was appropriate due to Complainant's age of forty years. Rather, the Board determined that five years of front pay was reasonable based on a psychologist's testimony indicating that Complainant was not likely to find permanent employment in the next five years. Five years was estimated to be the amount of time necessary to make Complainant employable again through psychotherapy, training and education.

The Board held that front pay is calculated by determining the present value of the future earnings that a complainant would have earned, and then subtracting the anticipated future earnings. In addition, the Board held that it is necessary to determine the present value of both income streams using an appropriate discount rate. The Board did not suggest an appropriate discount rate, but requested that the parties to agree to such; if no agreement can be reached, a remand to the ALJ was anticipated.

[Editor's note: To my knowledge, this is the first decision in which either the Secretary or the Board adopted an ALJ's recommendation of front pay. See Boytin v. Pennsylvania Power & Light Co., 94-ERA-32 (Sec'y Oct. 20, 1995)(noting that Secretary had not yet ruled on the appropriateness of front pay).]

SETTLEMENT; CONFIDENTIALITY; CHIEF ALJ'S OBLIGATION AS FOIA DISCLOSURE OFFICER
[N/E Digest XVII E 2]

In Cianfrani v. Public Service Electric & Gas Co., 95-ERA-33, slip op. at 2 n.3 (ARB Sept. 19, 1996), the parties requested that certain information in their settlement agreement be treated as confidential commercial information pursuant to the DOL's FOIA regulation at 29 C.F.R. § 70.26(e)(predisclosure notification procedure). After the ALJ denied a request by the parties to issue a redacted decision, the parties petitioned the Chief ALJ for intervention; the Chief ALJ denied the request, stating that he did not have the authority to intervene in a matter disposed of by another ALJ. Id., slip op. at 2 n.2; see also Cianfrani v. Public Service Electric & Gas Co., 95-ERA-33 (ALJ Sept. 4, 1996)(memorandum)

The Board held that the ALJ compromised the parties' request pursuant to section 70.26(e) by his incorporation of the terms of the settlement in his recommended decision and order. The Board held that the Chief ALJ was correct that he could not intervene in a matter disposed of by another ALJ, but that the Chief ALJ "as the designated Disclosure Officer pursuant to 29 C.F.R. § 70.2(c) and Appendix A to Part 70(b)(1), is to determine whether such information under his custody is exempt from disclosure under the provisions of FOIA, pursuant to § 552(b). Therefore, the Chief Administrative Law Judge should make such provisions as he deems appropriate to protect the confidentiality of the materials so requested, until a request is made pursuant to the pertinent regulations. The Federal recipients indicated on the ALJ's Recommended Decision Service Sheet are likewise requested to observe restricted handling in compliance with FOIA."

SETTLEMENT; WITHDRAWAL IN APPARENT ATTEMPT TO AVOID DOL REVIEW OF SETTLEMENT
[N/E Digest XVII A and XVII E 1]

In Wampler v. Pullman-Higgins Co., 84-ERA-13 (ARB Aug. 16, 1996)(Notice), the Secretary had disapproved a settlement and remanded the case. On remand, just prior to hearing, Complainant withdrew his complaint and the ALJ recommended approval of the withdrawal. The Board, stating that the outcome of any particular ERA case affects not only the parties, but the public as well, requested the Associate Solicitor for the Division of Fair Labor Standards to review the matter. Although it is not explicitly stated, Board is apparently concerned that the parties settled and are trying to avoid DOL review.

STIPULATION OF ISSUES NOT SETTLEMENT; ARB MUST ISSUE FINAL ORDER
[STAA Digest II G 2]

In Caimano v. Brink's, Inc., 95-STA-4 (ARB Aug. 14, 1996), the Secretary had remanded the matter to the ALJ for a recommendation on Complainant's "complete and specific remedy." On remand, the ALJ issued an "Order Affirming Settlement". The Board noted that the ALJ's order did not dispose of the matter because the agreement entered into by the parties was merely a joint stipulation concerning the Complainant's remedy. One of the stipulations entered into by the parties was that if the Secretary's decision was reversed on appeal and all appellate remedies had been exhausted, the other stipulations regarding the remedy would have no force or effect.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM
[N/E Digest IV B 3]

In Lawrence v. City of Andalusia Waste Water Treatment Facility, 95-WPC-6 (ARB Sept. 23, 1996), Complainants, prior to filing a FWPCA complaint with the Wage and Hour Division of the USDOL, pursued an internal Pre-Determination hearing and appeal regarding Respondent's intention to terminate their employment. The Wage and Hour filing was outside the 30-day limitations period of the FWPCA, but Complainants asserted that equitable tolling should be applied pursuant to School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). The Board held that summary decision was properly granted against Complainants where they offered no proof that they pursued their FWPCA claims before the City Commission, and they did not allege that they thought they were in the correct forum to make a claim for discrimination under the FWPCA.

The Board also noted that Complainants had been represented by counsel in the Pre-Determination hearing, and that where a plaintiff is represented by counsel, equitable tolling is generally not applied. The Board found "no reason to stray from the general rule in this matter." Slip op. at 2.

UNDERLYING VIOLATION; FAILURE TO REINSTATE
[N/E Digest IV C 9]

In Lawrence v. City of Andalusia Waste Water Treatment Facility, 95-WPC-6 (ARB Sept. 23, 1996), Complainants failed to file a timely FWPCA complaint about a notice of a Pre-Determination hearing concerning Respondent's intention to terminate their employment. Complainants were later terminated, and lost a appeal to the City Commission. Complainants contended that Respondent's failure to reinstate them after their administrative appeals constituted a separate act of discrimination under the FWPCA.

[Editor's note: The "failure to reinstate" occurred within the FWPCA time limit]

The Board held that since Respondent had no obligation to reinstate Complainants unless they proved that Respondent violated the FWPCA, and Complainants' action on the original termination notice was not timely filed, they lost the chance to prove such a violation.

WITHDRAWAL; RESULTS OF ARBITRATION
[N/E Digest XVIII A 1]

In Coleman v. Duquesne Light Co., 96-ERA-9 (ARB July 3, 1996), Complainant notified the ALJ that the issue of his discharge had been rescinded through arbitration and that Complainant wished to withdraw his complaint without prejudice. The Board accepted the withdrawal pursuant to Rule 41 of the Federal Rules of Civil Procedure.