WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges - United States Department of Labor

April 4, 1995

HIGHLIGHTS

The following is a quick summary of important recent decisions and other matters of interest that became available during the period from February 17 to March 31, 1995.

ADVERSE EMPLOYMENT ACTION; CONSTRUCTIVE DISCHARGE

In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), the Secretary held that a finding of constructive discharge requires proving that working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign, i.e., that the resignation was involuntary. Thus, the adverse consequences flowing from an adverse employment action generally are insufficient to substantiate a finding of constructive discharge. Rather, the presence of "aggravating factors" is required.

AFTER-ACQUIRED EVIDENCE RETAINS IMPORTANCE VIS-A-VIS THE DETERMINATION OF AN APPROPRIATE REMEDY

In Smith v. Tennessee Valley Authority, 89-ERA-12 (Sec'y Mar. 17, 1995), the Secretary remanded a complaint involving after-acquired evidence in light of the recent United States Supreme Court decision in McKennon v. Nashville Banner Publishing Co., 1995 U.S. LEXIS 699 (Jan. 23, 1995) (ADEA case), in which it was held that after-acquired evidence of the employee's wrongdoing is not a complete bar to recovery by the employee. In the remand order, the Secretary pointed out that after-acquired evidence must be taken into account in determining the appropriate remedy, and that, generally, neither reinstatement nor front pay are appropriate in cases of this type.

BURDEN OF ARTICULATION FOR COMPLAINANT'S PRIMA FACIE CASE

In the March 1, 1995 newsletter, it was noted that in Ass't Sec'y & 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. In Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar. 16, 1995) and Toland v. Burlington Motor Carriers, Inc., 93-STA-35 (Sec'y Feb. 27, 1995), the Secretary continued this line of reasoning, holding that corroborating evidence is not necessary to establish a prima facie case. In order to present a prima facie case the complainant need only to present evidence sufficient to prevail if not contradicted and overcome by other evidence.

Nonetheless, a showing that the respondent was aware of the complainant's protected activity does not, by itself, establish the causal element of a prima facie case. A complainant is required to present evidence that raises an inference that the protected activity was the likely reason for the adverse action. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995).

BURDEN OF PROOF AND PRODUCTION; WHETHER THE COMPLAINANT ESTABLISHED A PRIMA FACIE CASE LOOSES IMPORTANCE AFTER THE RESPONDENT PRESENTS REBUTTAL EVIDENCE OR ONCE THE RECORD IS COMPLETE

In Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995), the Secretary noted that "[o]nce a respondent has presented rebuttal evidence ... the answer to the question whether the complainant has made a prima facie showing is not particularly useful. See Carroll v. Bechtel Power Corp., [91-ERA-46 (Sec'y Feb. 15, 1995)], slip op. at 11 (restating and clarifying legal principles applicable in whistleblower proceedings). At that point, 'the real battleground revolves around whether the reasons articulated by respondent Carry . . . are pretextual,' and whether Complainant met his ultimate burden of proof. Complainant's Brief at 4; Carroll, slip op. at 12."

Similarly, in Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995) (citing Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at 10-11), the Secretary held that once the record is complete in a case, the answer to the question whether the Complainant presented a prima facie case is no longer particularly useful. Logic dictates that if the complainant does not prevail by a preponderance of the evidence on the ultimate question of liability, it matters not at all whether he or she presented a prima facie case.

DAMAGES; COMPLAINT INVOLVING INTERFERENCE WITH FUTURE JOB PROSPECTS

Where a former employer interfered with the Complainant's prospects of future employment, because of the indirect employment relationship, reinstatement was found to be inappropriate. Once discrimination has been proven, however, a presumption of entitlement to back pay arises, with the burden shifting to the former employer to rebut the presumption by showing that the complainant would not have been hired absent the discrimination. Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995).

EMPLOYEE; FEDERAL PRISON INMATES ARE NOT "EMPLOYEES" WITHIN THE MEANING OF THE TSCA OR THE CAA

In Coupar v. Federal Correctional Institution, El Reno, Oklahoma, 90-TSC-1 and 91-TSC-3 (Sec'y Feb. 28, 1995), the Secretary held that the Complainant, a prisoner incarcerated at a federal correctional facility, is not an employee within the meaning of the CAA or the TSCA, and therefore could not invoke the employee protection provisions of those statutes.

But see Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec'y Mar. 17, 1995), involving a prisoner at a state correctional facility, in which the Secretary did not make any reference to whether a state prisoner is covered under the TSCA.

INFERENCE OF CAUSATION; EVIDENCE OF WHOLLY UNPROTECTED CONDUCT IMMEDIATELY PRECEDING ADVERSE EMPLOYMENT ACTION

Evidence of wholly unprotected conduct immediately preceding an adverse employment action may militate against an inference of causation. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995) (at ultimate burden of proof stage of analysis).

LEGITIMATE, NONDISCRIMINATORY GROUNDS; FORCED DISPATCH POLICY

In Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995), the Secretary, analyzing the caseunder a dual motive analysis, concluded that because of the Respondent's unequivocal forced dispatch policy, the Respondent would have fired the Complainant even if he never complained about the safety of Respondent's vehicles or threatened to take assigned vehicles to a DOT inspection.

PROTECTED ACTIVITY; BYPASSING THE CHAIN OF COMMAND TO GO DIRECTLY TO THE NRC

In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order denying motion forreconsideration), the Secretary affirmed his earlier decision that an employee who refuses to reveal his or her safety concerns to management and asserts the right to bypass the 'chain of command' to speak directly with the Nuclear Regulatory Commission is protected under the ERA. The Secretary noted that a respondent in such circumstances will have an opportunity under the dual motive analysis to show it would have discharged Complainant, even if he or she had not insisted on his or her right to speak first to the NRC, for other legitimate reasons.

See also Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995) (failure to observe established channels for making safety complaints).

PROTECTED ACTIVITY; COMPLAINT TO MEMBER OF GENERAL PUBLIC

In Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2), the court affirmed a decision in which the Secretary had concluded that making health and safety complaints to a member of the general public (as opposed to a co-worker, employer/supervisor, union officer, or newspaper reporter), without demonstrating that the employee is about to file a complaint or participate or assist in a proceeding, is too remote from the remedial purposes of the relied upon whistleblower provisions to be a protected activity.

PROTECTED ACTIVITY; INTERNAL COMPLAINTS UNDER THE SWDA AND WPCA IN THE FIFTH CIRCUIT

In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995), the Secretary held that internal complaints are protected activity under the SWDA and the WPCA, even in the Fifth Circuit. The Secretary distinguished Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), based on the 1992 amendments to the ERA, which legislatively overturned that decision.

But see Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), in which the Fifth Circuit noted, with apparent disapproval, the Secretary's nonacquiescence with the logic of Brown & Root concerning an internal complaint in a CAA case.

SETTLEMENT; SECRETARIAL REVIEW NOT REQUIRED IN FWPCA COMPLAINT

The Secretary in Biddle v. United States Dept. of the Army, 93-WPC-15 (Sec'y Mar. 29, 1995), approved the use of Fed. R. Civ. P. 41(a)(1)(ii) to dismiss a complaint, even though it was evident that a settlement prompted the parties' stipulation of dismissal. The Secretary's decision is summary in form, but the underlying circumstances are stated in the ALJ's recommended order. Biddle v. United States Dept. of the Army, 93-WPC-15 (ALJ May 6, 1994). This is a clear departure from the requirements of the ERA and the CAA, which cannot be dismissed under Rule 41(a)(1)(ii) if a settlement underlies the request to dismiss. Rule 41(a)(1)(ii) is without leave of the court.

This decision is probably applicable to CERLCA and SWDA settlements as well. See Editor's note to the Biddle casenote.