Office of Administrative Law Judges - United States
Department of Labor
March 1, 1995
The following is a quick summary of important recent decisions
and other matters of interest.
AFTER ACQUIRED EVIDENCE
The United States Supreme Court ruled in McKennon v.
Nashville Banner Publishing Co., 1995 U.S. LEXIS 699 (1995),
that an employee discharged in violation of the ADEA is not
barred from all relief, when, after discharge, the employee's
employer discovers evidence of wrongdoing that would have lead to
the employee's discharge on lawful and legitimate grounds.
BURDEN OF PROOF AND PRODUCTION; COMPLAINANT'S BURDEN IN
REGARD TO PRIMA FACIE CASE VERSUS ULTIMATE BURDEN OF PERSUASION
In Brown v. Besco Steel
Supply, 93-STA-30 (Sec'y Jan. 24, 1995), the Secretary found
that the Complainant's statement that he was fired was sufficient
to establish the adverse action element of a prima facie case,
but also found that the Complainant failed establish his ultimate
burden of persuasion on that element where there was persuasive
evidence that the Respondent believed that the Complainant had
resigned voluntarily.
COVERAGE UNDER THE UNDERLYING STATUTE; REASONABLE BELIEF
TEST
In
Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1994),
the Secretary held that where the complainant has a reasonable
belief that the substance that he or she raised safety concerns
about is hazardous and regulated as such, he or she is protected
under the SWDA, even if the complainant is mistaken about the
governing law.
DAMAGES; LOSS OF JOB OPPORTUNITY NOT REQUIRED IN BLACKLISTING
CASE
The Secretary ruled that damages or a loss of an
employment
opportunity is not required for recovery in a blacklisting case.
Earwood v. Dart Container
Corp., 93-STA-16 (Sec'y Dec. 7, 1994).
DIRECTED VERDICT AT END OF COMPLAINANT'S CASE
In Carroll v. Bechtel
Power
Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), the Secretary held
that to survive a motion for directed verdict at the end of the
complainant's case, the complainant need only present sufficient
evidence to create a rebuttable presumption that he or she was
unlawfully discriminated against.
The Secretary ruled that summary decision is improper if a
Complainant has not been afforded adequate discovery concerning
his or her theory of continuing violation. Flor v. United States Dept. of
Energy, 93-TSC-1 (Sec'y Dec. 9, 1994).
FRONT PAY VERSUS REINSTATEMENT AS A REMEDY
The Secretary ruled that reinstatement is the usual remedy
in
employment discrimination cases, and rejected the ALJ's
recommendation of front pay based on hostility between the
Respondent and the Complainant where the record did not
document that hostility. Nolan
v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995) (remanded for
addition factfinding on this issue). See also Dutile v. Tighe Trucking, Inc.,
93-STA-31 (Sec'y Oct. 31, 1994) (ALJ must inquire into reasons if
a complainant does not seek reinstatement).
PILOT PROJECT FOR OSHA HANDLING OF NUCLEAR AND
ENVIRONMENTAL WHISTLEBLOWER COMPLAINTS
On January 18, 1995, the Department published in the
Federal
Register a Secretary's order, establishing a pilot project to
delegate responsibility for handling nuclear and environmental
whistleblower complaints to OSHA. The pilot project will last
until December 31, 1995, and will be confined to the Dallas
Region, Southwest Division (excluding New Mexico), unless
modification is made as provided in the Secretary's order. 60 Fed. Reg. 3655 (1995).
RECONSIDERATION; SECRETARY'S AUTHORITY
The Secretary ruled that he will follow Bartlik v.
United
States Dept. of Labor, 34 F.3d 365 (6th Cir. 1994), and not
entertain motions to reconsider for cases that arise in the Sixth
Circuit, Gillilan v. Tennessee
Valley Authority, 89-ERA-40 (Sec'y Nov. 29, 1994), but that
in cases arising in other circuits, he will assume that he has
the inherent authority to reconsider. Crosier v. Westinghouse Hanford
Co., 92-CAA-3 (Sec'y Dec. 8, 1994).
SETTLEMENTS; EXEMPTION FOUR TO FOIA
The Office of Administrative Law Judges determined in a letter responding to a FOIA request
relating to Irick v. Arizona
Public Service Co., 95-ERA-2 (Sec'y Jan. 26, 1995), that
Exemption Four may protect certain terms of a settlement
agreement under the National Parks & Conservation
Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) test.
SETTLEMENT; SECRETARIAL REVIEW NOT REQUIRED IN CERCLA
COMPLAINTS
In Lepore v. East Bay
Municipal Utility District, 94-CER-3 (Sec'y Feb.
15, 1995), the Office of Administrative Appeals issued a Notice
of Case Closing, stating that because CERCLA does not make the
Secretary a party to settlements, the action could be dismissed
by stipulation of the parties pursuant to Fed. R. Civ. P.
41(a)(1)(ii).
SETTLEMENT; SEVERANCE OF VOIDED CONFIDENTIALITY PROVISION
PERMISSIBLE WHERE SETTLEMENT AGREEMENT INCLUDED SAVINGS CLAUSE
In Tankersley v. Triple
Crown Services, Inc., 92-STA-8 (Sec'y Feb. 1, 1995), the
Secretary approved a settlement agreement even though he voided
and severed a confidentiality provision that may have restricted
the Complainant from voluntarily communicating with state or
federal agencies, where the parties had included a savings clause
in the agreement. Cf. Maktal v. Secretary of Labor, 923
F.2d 1150 (5th Cir. 1991) (Secretary may not eliminate a
"material term" of a proposed settlement without
consent of other parties).
TIMELINESS OF COMPLAINT; DATE OF DISCOVERY OF ADVERSE ACTION
The Secretary ruled that the date a Complainant learned of
a
former supervisor's derogatory remarks could be used as the date
from which the timeliness of a complaint is calculated. Flor v. United States Dept. of
Energy, 93-TSC-1 (Sec'y Dec. 9, 1994).
