WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
November 10,
1997
This newsletter covers materials that became available during the period from
September 29 to November 10, 1997.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[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 alsoMichaud 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 StatesDep'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.
[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. SeeMcKennon 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.