This newsletter covers materials that became available during the period from September 29 to November 10, 1997.

[N/E Digest III B 2 a]
TIMELINESS; DISCOVERY RULE

In Pantanizopoulos v. Tennessee Valley Authority, 96-ERA-15 (ARB Oct. 20, 1997), Complainant's claim accrued for purposes of calculating the timeliness of his complaint on the date that he discovered he had been wrongly injured. The ALJ had determined that the accrual date was the date Complainant should have known that he did not receive an expected monetary performance award. The ARB, however, found that the accrual date was the date Complainant learned of the reason why he had been denied the performance award -- a lower than expected performance evaluation. The ARB noted that Complainant could reasonably have concluded that any delay in receiving the evaluation and the expected performance award was due to a processing error or oversight, particularly since Complainant had retired prior the time the performance award was anticipated to be paid.

In discussing the issue, the ARB cited the "discovery rule" as described in Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991):

Accrual [of a claim] is the date on which the statute of limitations begins to run. It is not the date on which the wrong that injures the plaintiff occurs, but the date -- often the same, but sometimes later -- on which the plaintiff discovers that he has been injured. The rule that postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured is the "discovery rule" of federal common law, which is read into statutes of limitations in federal-question cases (even when those statutes of limitations are borrowed from state law) in the absence of a contrary directive from Congress. [Citations omitted]

The ARB also noted that the Secretary of Labor had held that the ERA limitations period begins to run "when the facts which would support the discrimination complaint were apparent or should have been apparent to a person with a reasonably prudent regard for his rights [and] similarly situated to Complainant." McGough v. United States Navy, 86-ERA-18, slip op. at 10 (Sec'y June 30, 1988).

[N/E Digest VII C 1]
SUMMARY DECISION; COMPLAINANT CANNOT STAND ONLY ON A SENSE THAT RESPONDENT WAS UNFAIR

In Pantanizopoulos v. Tennessee Valley Authority, 96-ERA-15 (ARB Oct. 20, 1997), Complainant did not receive an anticipated monetary performance award because his performance evaluation was lowered by his immediate supervisor's supervisor. The ALJ granted Respondent's motion for summary decision because Complainant had not provided any evidence in response to the motion showing that he had engaged in protected activity under the ERA, or that Respondent had violated the ERA in denying Complainant a performance award. The ALJ wrote that "[Complainant] relies only on his sense that the actions of Respondent are unfair in some way. Such a showing is not the affirmative evidence necessary to defeat a motion for summary judgment." The ARB adopted the ALJ's findings and dismissed the complaint.

[N/E Digest VII D 6]
PRO SE COMPLAINANT; ALJ'S QUESTIONING OF

In Eiff v. Entergy Operations, Inc., 96-ERA-42 (ARB Oct. 3, 1997), the ARB noted that it appreciated the ALJ's questioning of Complainant, who had appeared pro se.

[N/E Digest VIII A 6]
ALJ NOT REQUIRED TO SPECIFICALLY ADDRESS ALL ARGUMENTS AND EVIDENCE IF REASONING IS SUFFICIENTLY CLEAR

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), Complainant attacked the ALJ's recommended decision on the ground that the ALJ had not discussed all the favorable evidence and arguments mentioned in Complainant's post-hearing pleadings. The ARB, however, noted that an ALJ is "not required to explicitly accept or reject each of the parties' proposed findings and conclusions in the recommended decision." Slip op. at 3 (citations omitted). Rather, the ARB indicated that the ALJ's decision only needed to be sufficiently clear so that an appellate court does not have to speculate as to its basis. The ARB found that the ALJ's reasoning was clear.

[N/E Digest VIII A 7]
MOTION IN LIMINE; SCOPE OF REMAND ORDER

In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (ALJ Oct. 15, 1997), the Secretary had remanded part of the case for consideration under the dual motive analysis, and a recommendation by the ALJ on whether Complainant "would have been fired for legitimate reasons even if he had not engaged in protected activity." Because the original ALJ had retired, a new ALJ was assigned to the case on remand. Respondent filed a motion in limine seeking to limit the remand inquiry to evidence on the allegedly discriminating actor's motive in discharging Complainant, and Complainant's rebuttal of that evidence.

The ALJ found that although the Secretary's remand was specific in regard to the issue to be inquired into -- the dual motive analysis -- it did not limit the ALJ's discretion in how to accomplish the remand mandate. Considering that the original ALJ was not presiding over the remand, that the original ALJ had not considered dual motive analysis, that discrimination cases often must be proved by circumstantial evidence, and that credibility findings would be necessary to render findings about an actor's motives, the ALJ denied Respondent's motion.

See also Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), a STAA whistleblower decision indicating that a new hearing on remand for determination of damages is not necessarily required where the remand order did not explicitly require a second hearing, the existing record contained sufficient evidence to reasonably make a damage award, and Respondent had ample opportunity to present its evidence regarding the damages in the initial hearing.

[N/E Digest IX A]
DIRECTION THAT COMPLAINANT PREPARE AN APPENDIX OF VOLUMINOUS RECORD

In Sipes v. Arctic Slope Inspection Service, 95-TSC-15 (ARB Oct. 10, 1997), Complainant was directed by the ARB to prepare an appendix of the record, containing 1) relevant docket entries in the proceeding before the ALJ, 2) relevant portions of the transcript, and 3) any other parts of the record to which Complainant wished to direct the attention of the ARB. If the parties could not agree to the contents of the appendix, Respondent was afforded time to designate other parts of the record not designated by Complainant. The ARB fashioned this order due to the size of the record.

[N/E Digest IX N]
EXPERT WITNESS; APPOINTMENT AS

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), the ALJ improperly credited a witness as a disinterested expert witness where that person was called as a fact witness rather than an expert witness, was not appointed as an expert as provided at 29 C.F.R. § 18.706, and was appointed without the witness' consent and without proper opportunity for the parties to participate. The error, however, was harmless where it was unnecessary to rely on the witness' responses to hypotheticals to determine the issues involved in the instant case.

[N/E Digest IX P]
EXPERT WITNESS; QUALIFICATION AS AN EXPERT DOES NOT MANDATE THAT ALJ CREDIT THAT EXPERT'S TESTIMONY

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that the ALJ properly credited the testimony of a lay witness who had considerable experience and direct involvement in an underground storage tank project, over that of Complainant, who had been qualified as an expert witness on the subject of underground storage tanks. The ARB observed that the issue was one of witness credibility. Even though Complainant was qualified as an expert, the ARB found it is clear from the transcript that his knowledge of the subject project was limited.

[N/E Digest XI B 2 b vi]
MOTIVATION; CRITICISM OF COMPLAINANT AS NOT BEING A "TEAM PLAYER"

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), Complainant contended that his supervisor's criticism of Complainant as not being a "team player" has a special meaning under whistleblower law. Complainant was hired as an environmental coordinator. The ARB, however, found that the supervisor's basis for using that expression -- that Complainant was uncooperative and disrespectful -- was reasonable and nondiscriminatory under the facts of the case.

[N/E Digest XI B 2 b vi]
RETALIATORY MOTIVE; EMPLOYMENT ACTIONS BASED ON COMPLAINANTS FILING OF CIVIL ACTION

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), six Complainants (employees of an outage contractor) had filed a civil action in U.S. District Court pursuant to the Price-Anderson Act (which is part of the Atomic Energy Act) seeking $30 million dollars in damages relating to an incident in which they had been unintentionally exposed to radiation at one of Respondent's facilities. The levels of radiation exposure had been determined by an NRC investigation not to exceed limits set by the NRC. Later, Respondent discovered that one of the Complainant's had been hired to perform outage work at another facility, which lead one of Respondent's officials to issue instructions not to hire any of the Complainants during the pending litigation. That official indicated that he took Complainants at their word when they claimed that they were debilitated and suffered emotional distress as a result of the radioactive intake. The official did not interview any of the Complainants because:

I didn't feel I had a need to. I read the complaint and I thought the complaint was clear enough that someone that needed 30 million dollars to compensate for a low level of radiation and that they had debilitating and emotional stress over that I didn't think I needed that kind of person working the outage for me.

Thereafter, Complainants filed the instant ERA whistleblower complaint.

The ARB found that Respondent's actions were direct evidence of retaliation, and turned to the question of whether Respondent established by clear and convincing evidence that it would have taken the same action against Complainants even if they had not filed their Price-Anderson Act lawsuit. Respondent maintained that it had legitimate concerns: Complainants were unwilling to work without respirators; were suffering severe and debilitating emotional distress resulting from radiation exposures the federal regulations allow and that they would likely receive again; and, might refuse to perform certain work, which conduct would disrupt Respondent's strict outage schedule. Respondent argued that these are business-related concerns, and none involves intent to retaliate against or punish Complainants for their tort lawsuit.

The ARB stated that it was significant that Respondent's did not interview Complainants prior to taking the action to bar them, nor take any other action to determine if their past behavior was disruptive or predictive of disruptive behavior in the future. Moreover, Complainants had continued to work the outage at the facility where they were exposed to radiation in an appropriate manner, and were told they would be welcomed back. There was no proof in the record indicating that Complainants were unwilling to work without respirators. The ARB found that there was no basis to assume that Complainants would refuse to follow work instructions in a properly surveyed and controlled environment. In short, Respondent's speculations about how Complainants would act in the future were just that -- speculations. The ARB found the real basis for barring Complainants was clearly that Respondent did not want to provide work for persons who had sued it. Because the suit was protected activity, Respondent's motive was retaliatory.

[N/E Digest XI B 2 b ix]
PROTOCOL TO NOTIFY MANAGEMENT BEFORE INVITING INSPECTOR TO WORKSITE

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), Complainant argued that animus toward protected activity was shown by his superiors' suggestion that Complainant view a film to refresh his memory on the company's procedure for responding to an inspection by a government agency. This suggestion was a result of one supervisor's being upset about Complainant's failure to follow protocol by notifying a member of management before inviting an inspector into the building. The ARB found that this did not show animus where Complainant did not raise his safety concerns with the inspector, did not show that the supervisor was perturbed because of any comment that might have been mad to the inspector, or that the purpose of the protocol was to prevent protected communications between employees and inspectors.

The ARB cautioned, however, that "... an employer may not, with impunity, fault an employee for failing to follow the chain-of-command in raising safety or environmental issues. Saporito v. Florida Power and Light Co., Case No. 89-ERA-7, 17, Sec. Decs., June 3, 1994, and Feb. 16, 1995; Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991)." Slip op. at 8 n.9.

[N/E Digest XI B 2 b ix]
REFUSAL TO DIVULGE SAFETY CONCERNS TO RESPONDENT

In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (ALJ Oct. 15, 1997), the Secretary had remanded part of the case for consideration under the dual motive analysis. On remand, the matter was reassigned to a different ALJ because the original presiding ALJ had retired. The newly assigned ALJ reviewed the entire record in detail, and concluded that Complainant had engaged in three acts of insubordination that would have resulted in his discharge, even in the absence of protected activity. The ALJ, however, explained that the first act of insubordination could not be considered by him because it was removed from the ALJ's mandate on remand by both the Secretary's original remand order and the Secretary's order denying Respondent's motion for reconsideration. Specifically, the Secretary had held that Respondent had "violated the ERA when it later discharged [Complainant], among other reasons, for refusing to obey [his supervisor's] order to reveal his safety concerns." The Secretary had held that Respondent's stated rationale for the order to reveal safety concerns to be "disingenuous". The Secretary confirmed this ruling in the order denying Respondent's motion for reconsideration, to wit: "I find no basis to reconsider the June 3 decision that disciplining an employee for refusing to reveal safety concerns to management when he is about to report his concerns to the NRC is a violation of the ERA."

The ALJ, however, believing it to be his judicial responsibility to note his finding, observed that the evidence of record indicated to him that the supervisor reasonably believed that Complainant had an "obligation to divulge his safety concerns to the licensee, the entity primarily responsible for the safe operation of the nuclear plant." The ALJ recognized that "it should not be possible for a respondent to vitiate its action which violates the ERA by merely arguing that is mistakenly believed its actions were lawful." Nonetheless, in the instant context:

The inquiry should more properly focus upon whether a respondent committed those actions in retaliation for a complainant having engaged in protected activity. If a respondent can establish that it took particular action based on a reasonable belief as to its a safety obligation, it should matter not that the belief subsequently turns out to be legally incorrect because that respondent would have shown that it did not act against complainant in retaliation for his engaging in protected activity.

[N/E Digest XI B 3]
ELEMENTS OF PRIMA FACIE CASE; NOT TO BE ADDRESSED ONCE RESPONDENT PRESENTS REBUTTAL EVIDENCE

In Eiff v. Entergy Operations, Inc., 96-ERA-42 (ARB Oct. 3, 1997), the ALJ had determined in a Recommended Decision following the hearing that Complainant had failed to make out a prima facie case of discriminatory treatment. The ARB, although affirming all other aspects of the ALJ's decision, declined to adopt this finding. The ARB wrote:

Where, as here, the respondent has introduced evidence to rebut a prima facie case of a violation of the ERA's employee protection provision, it is unnecessary to examine the question of whether the complainant established a prima facie case.

Slip op. at 1-2 (citation omitted).

To the same effect: Boschuk v. J & L Testing, Inc., 96-ERA-16, slip op. at n.1 (ARB Sept. 23, 1997); Pittman v. Goggin Truck Line, Inc., 96-STA-25, slip op. at n.2 (ARB Sept. 23, 1997).

[N/E Digest XI E 14]
NONACTIONABLE COMPLAINTS; RELEVANCE OF EVIDENCE CONCERNING MOTIVE

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that some of Complainant's concerns were not protected by environmental whistleblower provisions (e.g., occupational, racial, and other nonenvironmental concerns about respirators, physical danger to children posed by empty drums, and inclusion of an individual on a certain team). Nonetheless, the ARB noted that it considered whether the evidence relating to those allegations showed any hostility toward protected activity bearing on the question of Respondent's motivation. The Board noted also that it considered earlier personnel actions, even though they were discrete incidents that occurred outside the limitations period, because they formed in part a basis for Complainant's termination from employment, and shed light on the true character of matters occurring within the limitations period.

[N/E Digest XI E 14]
MOTIVATION; RESPONDENT'S ACTIONS INDICATE NO REASON TO FEAR EXPOSURE OF WRONGDOING

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), there was evidence that Respondent had started a project to remove underground storage tanks and replace them with above ground storage tanks before Complainant was hired, and that Respondent had hired an outside engineering firm to conduct tank integrity testing and soil contamination assessments and to issue reports and plans on how to proceed under applicable regulations and in consultation with state officials. Complainant questioned supervisors about the handling of certain allegedly contaminated soil removed at same time that the first tank was removed. Complainant, however, conceded that the tank was removed under the supervision of consulting engineers with no evidence to indicate that the engineers did not follow proper procedures for testing and handling the excavated soil. The supervisors knew that the soil was not contaminated.

The ARB found that these facts showed the absence of motive -- no reason to fear exposure of wrongdoing or otherwise feel the need to silence Complainant. The ARB cited with approval the ALJ's observation that "...proof that management considered the concerns invalid may be relevant to the question of motivation," especially in view of significant evidence that the supervisor was concerned about safety issues.

[N/E Digest XI E 14]
MOTIVATION; PROFESSIONAL DISAGREEMENT

The ARB held in Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), that "[a] mere difference of professional opinion, without more, does not prove retaliatory motives." Slip op. at 10.

[N/E Digest XI F]
AFTER ACQUIRED EVIDENCE; CANNOT BE USED TO NEGATE LIABILITY, ALTHOUGH IT IS RELEVANT TO APPROPRIATE REMEDY

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), Respondent argued that one Complainant was not qualified for a rehire position, and therefore could not have been retaliated against, because he lied on a self-disclosure questionnaire about having been removed from a previous job because of a positive drug test.

The ARB found, however, that Respondent did not know of the false statement at the time it retaliated against him. The ARB cited the Supreme Court decision in McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d 852 (1995), for the proposition that after-acquired evidence cannot not be used to negate liability. The ARB found, however, that it must consider how the after-acquired evidence bears on the remedy.

[N/E Digest XII D 13]
PROTECTED ACTIVITY; FILING OF PRICE-ANDERSON ACT CIVIL ACTION

A Price-Anderson Act civil action is a "proceeding" under the "Atomic Energy Act, as amended" within the meaning of Section 211 of the ERA, and therefore falls within its protective ambit. McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997).

[N/E Digest XIII A]
ADVERSE ACTION; DEFINITION

"An adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44).

[N/E Digest XIII B 1]
BLACKLISTING; NEGATIVE EMPLOYMENT REFERENCES FOLLOWING FILING OF COMPLAINT NOT ACTIONABLE IF NOT MOTIVATED BY PROTECTED ACTIVITY

In Odom v. Anchor Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that Gaballa v. Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996), does not necessarily prohibit an employer from providing a negative reference once the employee has filed a retaliation claim. Rather, to be discriminatory, such a communication must be motivated at least in part by protected activity. The ARB noted that in Gaballa, unlike in the instant case, the employer explicitly mentioned the employee's protected complaint of retaliation.

[N/E Digest XIV A 1]
DEFINITION OF EMPLOYEE; APPLICABILITY OF NLRA

In Boschuk v. J & L Testing, Inc., 96-ERA-16 (ARB Sept. 23, 1997), Respondent argued that Complainant was not protected by the ERA because he is the natural son of the president and sole owner of the respondent company. Respondent contended that since the word "employee" is not defined in the ERA, the Board must therefore apply the definition contained in the National Labor Relations Act (NLRA), which specifies that "the term employee . . . shall not include . . . any individual employed by his parent or spouse." 29 U.S.C. §152(3).

The ARB rejected this contention, finding that it was not bound to apply specific legislative exemptions contained in the NLRA to the ERA. Rather, the ARB will apply the test set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) and Nationwide Mutual Insurance Company v. Darden, 112 S. Ct. 1344 (1992), i.e., the conventional master-servant relationship as understood by common-law agency doctrine.

[N/E Digest XVI A 4]
SUPPLEMENTAL PROCEEDINGS ON DAMAGES AFTER ALJ ISSUES RECOMMENDED DECISION

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), Complainants filed a motion for supplemental proceedings with the ALJ for a calculation of damages for a period ending after the ALJ had issued his recommended decision but before he had ruled on attorney's fees. The ALJ denied the motion, ruling that it would lead to repetitive proceedings as additional calculations would be needed when the ARB finally ruled, and that the ARB now had jurisdiction over the entire matter except attorney's fees. The ALJ advised Complainants to request a remand for a hearing on supplemental damages after the ARB had ruled on the merits. The ARB held that the ALJ had stated that appropriate procedure to deal with supplemental proceedings on damages.

[N/E Digest XVI A 5]
AFTER ACQUIRED EVIDENCE; CALCULATION OF BACK PAY

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), Respondent introduced evidence that one Complainant would have been barred from outage work at one of its facilities, although it did not know about this information at the time of the ERA-whistleblower retaliation.

The ARB calculated back pay from the date that Complainant would have been placed for work at the facility to the date that Respondent knew of the information that would have led to his being barred from the facility. See McKennon v. Nashville Banner Pub. Co., 130 L.Ed.2d 852, 864 (1995) ("The beginning point in the trial court's formulation of a remedy [in an after-acquired evidence situation] should be calculation of back pay from the date of the unlawful discharge to the date the new information was discovered."). Because Respondent did not establish the date it acquired this information, the ARB used the date of the hearing before the ALJ as the end date.

[N/E Digest XVI B 9]
OUTAGE WORKERS; RIGHT TO "REINSTATEMENT"

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), several Complainants, who were contract outage workers, had been barred from work at Respondents facilities due to unlawful retaliation under the ERA. The ARB determined that whatever "reinstatement" rights the Complainants had, they had become moot with the passage of time because the outages during which Complainants were entitled to be placed had ended. The ARB held that: "In any event, Complainants do not have an enduring right to be placed at [Respondent's] projects; what they do have is a right, protected by order of this Board (in both the Preliminary Order and this Order), not to be barred from work at [Respondent's] nuclear projects in retaliation for their protected activity." The ARB held that there were now no positions to which Complainants were entitled to be "reinstated."

Complainants were made whole because denial of access flags were removed, they received back pay for the period they were unlawfully barred, and they are now eligible for future placement at Respondent's facilities.

[N/E Digest XVI C 1 c]
BACK PAY; UNCERTAINTIES RESOLVED AGAINST DISCRIMINATING PARTY

Uncertainties in establishing the amount of back pay to be awarded are to be resolved against the discriminating party. McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997).

[N/E Digest XVI E 3 b]
ATTORNEY'S FEES; EFFECT OF COMPLAINANTS' AGREEMENT TO PAY FLAT AMOUNT

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), each of six Complainants had agreed to pay counsel $5,000 for attorney's fees for handling the case from filing the administrative complaint through appeal to the U.S. Supreme Court: a total of $30,000. The ALJ had recommended payment of attorney's fees of $36,063 and expenses of ,867.43, rejecting Respondent's argument that Complainants agreement with counsel operated as a cap of $30,000. The ARB reversed the ALJ, finding that the statutory language at 42 U.S.C. § 5851(b)(2)(b) "reasonably incurred ... by the complainant" required that Respondent's liability be limited to Complainants' liability for fees and expenses, even though it also found that the reasonable attorney's fees in this case were over $30,000. The ARB noted that it was not clear why Congress choose to limit attorney's fees awards in this way, but that the statutory language was clear.

[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; REDUCTION FOR EXCESSIVE TIME REVIEWING TRANSCRIPT

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were claimed for 23.4 hours for reviewing the hearing transcript. The ARB rejected the hours claimed, and reduced them to 13 hours, where the hearing only lasted about 6.5 hours, and time spent preparing the post-hearing brief was separately claimed.

[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; MEETING WITH NRC

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), attorney's fees were claimed for a 3.6 hour meeting with the NRC. The ARB disallowed the claim because Complainants' attorneys had not established that the meeting was connected to the instant litigation.

[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; TIME SPENT DRAFTING SHORT LETTER

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), Respondent objected to 3.2 hours being claimed for drafting a three sentence letter. The ARB allowed the claim where research regarding the filing of the letter might have accounted for the time allotted.

[N/E Digest XVI G 2 b]
REMEDIES; DENIAL OF ACCESS FLAGS

In McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997), the ARB ordered removal of denial of access flags Respondent had placed in the records of several Complainants. The ARB also ordered Respondent to inform other entities to which it had written about denial of access -- another employer and the union local -- that the letter informing them of the denial of access had been ruled unlawful retaliation under the ERA.

[N/E Digest XVII A and D 2]

SUBMISSION OF SETTLEMENT AGREEMENT IN FWPCA CASES

In Dorsey v. Greenbriar County Public Service District #2, 96-WPC-3 (ARB Sept. 29, 1997), the ARB indicated that where the parties submit a letter to the ALJ stipulating resolution of their dispute and requesting dismissal of the complaint, Fed. R. Civ. P. 41(a)(1)(ii) is applied, and the complaint is dismissed. Although the ALJ required submission of the settlement, and reviewed it to determine whether it was fair, adequate and reasonable, Dorsey v. Greenbriar County Public Service District #2, 96-WPC-3 (ALJ July 25, 1997), there is no indication that the ARB did anything more than accept the stipulation of dismissal.

In the April newsletter, a casenote reported that in James v. Ketchikan Pulp Co., 94-WPC-4 (ARB Mar. 11, 1997), the ARB ordered the parties to submit a copy of a settlement agreement to the ARB, so that it could determine whether the settlement agreement is fair, adequate and reasonable, in an apparent departure from the approach in Biddle v. United States Dept. of the Army, 93-WPC-15 (Sec'y Mar. 24, 1995), adopting, Biddle v. United States Dept. of the Army, 93-WPC-15 (ALJ May 6, 1994), a FWPCA case in which the parties settled, but the matter was dismissed pursuant to Fed. R. Civ. P. 41(a)(1)(ii) based on a stipulated withdrawal without a review of the settlement by the ALJ or the Secretary. In the final order, however, the ARB in James v. Ketchikan Pulp Co., 94-WPC-4 (ARB July 23, 1997), applied Fed. R. Civ. P. 41(a)(1)(ii), apparently without review of the underlying settlement.

Thus, based on Dorsey, and the final order in James, it appears that the ALJ's approach in Biddle is still correct.

[N/E Digest XVIII C 4]
DISMISSAL FOR FAILURE TO ATTEND HEARING

In Durakovic v. Dept. of Veterans Affairs, 97-ERA-39 (ALJ Aug. 28, 1997), the ALJ recommended dismissal of the complaint with prejudice based on the failure of Complainant or a representative to appear at the scheduled hearing, and Complainant's lack of response to Respondent's subsequent motion to dismiss for failure to prosecute. The ARB issued an order to show cause, and dismissed the complaint when Complainant declined to respond. Durakovic v. Dept. of Veterans Affairs, 97-ERA-39 (ARB Sept. 16, 1997).

[N/E Digest XVIII C 6]
DISMISSAL FOR FAILURE TO COMPLY WITH ALJ'S PREHEARING ORDERS

In Chalk v. Jerry l. Pettis Memorial Veterans Affairs Medical Center, 97-ERA-4 (ARB Sept. 9, 1997), the ARB dismissed the complaint after issuing an order to show cause and receiving no response from Complainant. The ALJ had issued a Recommended Order of Dismissal based on Complainant's repeated failure to comply with the ALJ's orders requiring him to file a prehearing statement, or to response to the ALJ's order to show cause why the complaint should not be dismissed. Chalk v. Jerry l. Pettis Memorial Veterans Affairs Medical Center, 97-ERA-4 (ALJ July 8, 1997).

To the same effect, see: Schooley v. Alyeska Pipeline Service Co., 96-TSC-4 (ALJ June 3, 1996), adopted by ARB following failure of Complainant to respond to its order to show cause in regard 96-TSC-4 and a consolidated case, Schooley v. Alyeska Pipeline Service Co., 96-TSC-4 and 97-TSC-5 (ARB Sept. 8, 1997) (ALJ had issued order to show cause based on apparent coverage of complaint by earlier settlement; Complainant did not respond, and ALJ recommended dismissal for abandonment).

[STAA Digest II E 8]
REMAND FOR CONSIDERATION OF DAMAGES; ALJ'S DISCRETION TO DETERMINE WHETHER ADDITIONAL HEARING REQUIRED

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ALJ had canceled a scheduled hearing on remand for a determination of damages when Complainant asked the ALJ to resolve the damages issue on the existing record. The ALJ canceled the hearing prior to the time Respondent should have had to respond to Complainant's request. The ARB held that this was harmless error because the remand order had not explicitly required the ALJ to hold a second hearing to resolve the issue of damages, the existing record contained sufficient evidence to reasonably make a damage award, and Respondent had ample opportunity to present its evidence regarding the damages in the initial hearing.

[STAA Digest II L]
STAY OF ARB'S FINAL ORDER PENDING APPELLATE REVIEW

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-43 (ARB Sept. 23, 1997), Respondent sought a stay pending judicial review of the portion of the ARB's final decision requiring Respondent to pay monies to Complainant. The ARB applied the following factors for determining whether the Board's final decision should be stayed:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;

(2) the likelihood that the moving party will be irreparably harmed absent a stay;

(3) the prospect that others will be harmed if the court grants the stay; and

(4) the public interest in granting a stay.

The ARB found that Respondent had not established that it will suffer irreparable harm unless the stay is granted. Respondent argued that it was unlikely that it would be able to get the money back it won the appeal. The ARB, however, cited caselaw to the effect that economic loss alone does not constitute irreparable harm; such a loss must threaten the movant's very existence.

In addition, the ARB found that Respondent had not demonstrated that it was likely to prevail on the merits in regard to issues about the burden of proof, internal complaints, and admissibility of hearsay.

Respondent also argued that "no public interest is promoted by rendering a litigant's legitimate right of appeal moot." The ARB, however, found that the absence of a stay does not moot a respondent's appeal.

[STAA Digest II N]
EVIDENCE; ADMISSIBILITY OF TAPE RECORDING

In Pittman v. Goggin Truck Line, Inc., 96-STA-25 (ARB Sept. 23, 1997), the ALJ properly admitted into evidence a tape recording and transcript of the tape recording pursuant to both 29 C.F.R. § 18.801(d)(2)(iv), and the ALJ's discretion. The ARB noted that a tape recording is admissible pursuant to 29 C.F.R. § 18.1001-1002, that the parties whose voices were recorded testified at the hearing and had the opportunity to testify about any inaudible or incomprehensible portions of the tape, and that Respondent's manager did not deny making the statements heard on the tape.

[STAA Digest V A 3 e]
REASONABLE APPREHENSION OF INJURY NOT ELEMENT OF § 31105(a)(1)(A) SAFETY COMPLAINT

Where Complainant's asserted protected activity is an internal complaint about safety pursuant to 49 U.S.C. § 31105(a)(1)(A), rather than refusal to drive pursuant to § 31105(a)(1)(B)(ii), protection under the STAA is not contingent on Complainant's reasonable apprehension of injury. Pittman v. Goggin Truck Line, Inc., 96-STA-25 (ARB Sept. 23, 1997).

[STAA Digest IX A 9]
REFUSAL OF UNCONDITIONAL OFFER OF REINSTATEMENT; IF REFUSAL IS REASONABLE, RESPONDENT MAY BE SUBJECT TO FRONT PAY LIABILITY

Although a complainant's rejection of an unconditional reinstatement offer ends the respondent's responsibility for back pay, a reasonable refusal of an offer of reinstatement may subject the respondent to front pay liability. See, e.g., Lewis v. Federal Prison Indus., 953 F.2d 1277 (11th Cir. 1992) (former employee could not return to his work environment without suffering a return of debilitating symptoms; therefore front pay damages awarded).

Thus, in Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), where there was unrefuted evidence that Complainant was suffering from major depression at the time Respondent offered reinstatement, and was under physician's advice that reinstatement would not be conducive to recovery from the depression, the ARB held that Complainant's rejection of the reinstatement offer was reasonable, and subjected Respondent to front pay liability.

The ARB rejected Respondent's contention that front pay is not an available remedy under the STAA. The ARB, however, made a point of observing that, in most cases, an employer is at an advantage in regard to back pay liability by making an offer of reinstatement as early as possible because it would be only in limited circumstances, such as in Michaud, that liability for wages would continue after a bona fide offer of reinstatement.

[STAA Digest IX A 9]
FRONT PAY AWARD; CALCULATION OF LENGTH AND AMOUNT

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB held that Complainant had reasonably rejected a bona fide offer of reinstatement because of his depression, and therefore Respondent was subject to front pay liability. The ARB held that the back pay liability ended on the date of the bona fide offer. Front pay liability began on the date the hearing closed and was to last two years from that date, and was to be measured the same as back pay.

The ARB made the front pay calculation based on the hearing testimony of a medical expert that it would take two years to rehabilitate Complainant to the point where he could work again. The ALJ had concluded that front pay liability would begin on the date when Respondent paid the damages already due Complainant; the ARB, however, found that the appropriate date was the time that the medical opinion was given.

The ARB held that future damages should be discounted to present value. In the instant case, however, since only a few months would elapse between the date of its final order and the end of the front pay period, no reduction to present value was ordered.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; MEANING OF "COMPENSATORY"

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), Respondent contended that the phrase in 49 U.S.C. § 31105(b)(3)(A) -- "compensatory damages, including back pay" -- does not include damages for emotional suffering, psychic injury, and medical expenses, but only back pay (i.e., lost wages, salary, or commissions), and other employment-related forms of compensation (i.e., fringe benefits, vacation pay, bonuses, sick pay, disability benefits, etc.).

The ARB rejected this contention, holding that the common meaning of compensatory includes both back wages as well as damages for pain and suffering. The ARB noted that both it and the Secretary had consistently held that compensatory damages under the STAA include damages for pain and suffering, mental anguish, embarrassment, and humiliation, and that reviewing courts have affirmed Secretarial orders pursuant to the STAA that required payment of compensatory damages.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; COMPARATIVE AWARDS

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB affirmed the ALJ's recommendation of a compensatory damages award of $75,000 where the evidence showed that prior to discharge, Complainant had substantial savings, owned a house, had good credit, and a stable financial position, but after Respondent's unlawful action, Complainant began defaulting on payments, lost his house through foreclosure, his savings, and his ability to obtain credit, and has received public assistance. Complainant also suffered major depression as the result of Respondent's unlawful discharge.

[STAA Digest IX C]
ATTORNEY'S FEES AND EXPENSES; TRAVEL TIME TO AND FROM HEARING

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB approved a $120 hourly rate for attorney travel time to and from the hearing.

[STAA Digest IX C]
ATTORNEY'S FEES AND EXPENSES; PHOTOCOPIES AND POSTAGE AS OVERHEAD

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB rejected Respondent's contention that charges for photocopies and postage are included in counsel's overhead reflected in his hourly rate. Rather, the ARB held that under the STAA, such expense are separately awarded where documented.

[STAA Digest IX D 1]
ORDER TO EXPUNGE; PERSONNEL RECORDS

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to expunge from Complainant's personnel records all derogatory or negative information contained therein relating to Complainant's protected activity and that protected activity's role in Complainant's termination. The objection was that the order was vague and Complainant had not identified any specific negative documents that should be removed.

The ARB affirmed the ALJ's order, finding it to be sufficiently clear. The ARB stated that it would not place the burden on Complainant to identify specifically the documents.

[STAA Digest IX D 2]
POSTING OF NOTICE OF DECISION

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), Respondent objected to the ALJ's order to post written notice advising that the disciplinary action taken against Complainant had been expunged and that Complainant prevailed on this complaint. The objection was based on the passage of time since Complainant's 1993 discharge. The ARB affirmed the ALJ's order, finding that it was a standard remedy in discrimination cases that notifies a respondent's employees of the outcome of a case against their employer.

[STAA Digest IX D 3]
COMPENSATORY DAMAGES; MEDICAL BENEFITS; RESPONDENT IS NOT REQUIRED TO PAY BOTH HEALTH INSURANCE PREMIUMS AND FAMILY MEDICAL EXPENSES EXCEPT COMPLAINANT'S OUT-OF-POCKET HEALTH CARE COSTS DIRECTLY ATTRIBUTABLE TO RESPONDENT'S WRONGFUL CONDUCT

In Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), the ARB affirmed the ALJ's order that Respondent pay the value of health insurance premiums, but reversed his order that Respondent also pay for any health care cost incurred by Complainant or his family that would have been covered under Respondent's health insurance program, the ARB finding that Complainant would otherwise receive a double recovery. The ARB, however, affirmed that portion of the ALJ's order that Respondent pay health care costs associated with diagnosing and treating Complainant's depression (regardless of whether that care and treatment would have been covered by Respondent's health insurance program) personally incurred by Complainant because the ARB had found that Respondent's wrongful conduct caused the depression.