WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

May 1, 1995

RECENT SIGNIFICANT DECISIONS

AFTER-ACQUIRED EVIDENCE; EFFECT ON REMEDY

In Dean & Lamb v. Houston Lighting & Power Co., 93-ERA-7 and 8 (ALJ Apr. 6, 1995), involving two Complainants, the ALJ found that the Respondent would have fired one of the Complainants had it known he possessed a document subject to secure procedures. Thus, although the ALJ found both Complainants to be entitled to relief, he did not recommend reinstatement of the Complainant who would have been fired. Rather, he recommended limiting that Complainant's entitlement to back pay to the date the possession of the document was discovered and confirmed by the Respondent as a secure document. See McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995) (after-acquired evidence doctrine is still relevant to scope of remedy).

DISCOVERY; ALJ'S LACK OF AUTHORITY TO COMPEL PRODUCTION BY A NONPARTY

Nonparties may not be compelled by the ALJ to produce items subject to a discovery request in an ERA whistleblower proceeding. See Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), slip op. at 9 n.6, citing Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994), slip op. at 21. In Malpass, the Secretary indicated in dicta that DOL does not have subpoena power in ERA whistleblower proceedings.

DISCOVERY; SELF-CRITICAL ANALYSIS PRIVILEGE

The self-critical analysis privilege applies only when the public interest in maintaining confidentiality outweighs the requesting party's need for the information. In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary held that "the overwhelming public interest in protecting whistleblowers who act to promote nuclear power safety outweighe[d the Respondent's] interest in keeping the ... reports confidential." Slip op. at 7-8.

EMPLOYEE STATUS; SECRETARY APPLIES COMMON-LAW TEST; "EMPLOYEE" STATUS IS JURISDICTIONAL AND PROPER FOR A RULE 12(b)(1) MOTION; COMPLAINANT MUST OPPOSE A FACTUAL ATTACK ON JURISDICTION WITH AFFIDAVITS OR DOCUMENTS

In Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), the Secretary held that a physician who was recruited to set up a practice by several Respondents was not an "employee" within the environmental whistleblower provisions of the CAA, TSCA, CERCLA, SDWA, FWPCA and the SWDA. In making this ruling, the Secretary applied the "employee" test used in Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344 (1992) (essentially, the general common law of agency), and rejected more expansive definitions of "employee" proffered by the Complainant (an "economic realities" test used in FLSA cases), and the Solicitor of Labor (a Title VII analogy). The Secretary ruled that the "employee" issue is jurisdictional, and a proper matter for a motion to dismiss under Fed. R. Civ. P. 12(b)(1). Because the Complainant failed to present any affidavits or other documentation to establish a prima facie case of jurisdiction, the Secretary granted the Respondent's motion. The Secretary also held that the ALJ did not commit reversible error by declining to lift a stay on discovery prior to ruling on the jurisdictional issue where the facts necessary to make a determination on the issue were either contained in a contract or were within the personal knowledge of the Complainant, and the Complainant's interrogatories purportedly for the purpose of establishing jurisdictional facts were directed to largely irrelevant issues.

"EMPLOYER" STATUS; LAW FIRM'S REPRESENTATION OF POWER COMPANY

In Saporito v. Florida Power & Light Co., 94-ERA-35 (ALJ Apr. 5, 1995), the ALJ recommended a finding that a law firm is not an "employer" within the meaning of the ERA, 42 U.S.C. § 5851(a)(2), finding unpersuasive the Complainant's contention that the law firm's association with, and professional services and activities as advocate for, a power company in prior and ongoing proceedings before the DOL and the NRC inducted the law firm into the category of an "employer" under the ERA.

EQUITABLE TOLLING; DISTINCTION BETWEEN STATING THAT INTERNAL PROCEDURES ARE THE BEST MEANS TO REPORT SAFETY CONCERNS AND STATING THAT SUCH PROCEDURES ARE ONE MEANS TO REPORT SAFETY CONCERNS

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary noted that equitable tolling is justified when an employer's complaint handling process causes confusion that deters a complainant from timely filing a complaint. In remanding the complaint for a hearing on equitable tolling, the Secretary drew a distinction between what statements made a complaint department would likely be to result in equitable tolling. If the complaint department told a complainant that it was "either was the sole or best means to report safety concerns" equitable tolling may apply. (emphasis added) If, however, a complainant is told that the complaint department "was one means to address safety issues in addition to other avenues of redress" equitable tolling would be difficult to invoke. (emphasis added)

INTERNAL COMPLAINTS UNDER THE ERA IN THE ELEVENTH CIRCUIT

The Eleventh Circuit joined the majority of other circuits holding that internal complaints may constitute protected activity under the ERA whistleblower provision as it existed prior to the 1992 amendments. Bechtel Construction Co. v. Secretary of Labor, No. 94-4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS 9029) (the 1992 amendments explicitly recognize internal complaints as protected activity).

INTERNAL COMPLAINTS UNDER THE CAA IN THE FIFTH CIRCUIT

In West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995), the Secretary held that a whistleblower complaint lodged with the respondent is a protected activity under the Clean Air Act, even in the Fifth Circuit.

ISSUE PRECLUSION IS NOT APPLICABLE WHEN OTHER COURT APPLIED A HIGHER BURDEN OF PERSUASION

In Ewald v. Commonwealth of Virginia, 89-SDW-1 (Sec'y Apr. 20, 1995), the Secretary found that it was improper to apply issue preclusion to a finding made by a Federal district court in a First Amendment proceeding involving the same set of facts in Complainant's SDWA whistleblower proceeding. The district court had determined that the Complainant's speech did not meet the "but-for" standard of Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990) (complainant must show that "but for" the protected expression the employer would not have taken the alleged retaliatory action). The Secretary found that a complaint in an environmental whistleblower proceeding need prove by a preponderance of the evidence only that retaliatory motive played a part in the employer's decision to take adverse action against the employee. Thus, the but for test is a higher burden of persuasion, and issue preclusion does not apply.

PROTECTIVE ORDER; ALJ'S CONTINUING JURISDICTION

An ALJ retains jurisdiction in an ERA case to modify a protective order even after transmittal of his or her recommended decision to the Secretary. The ALJ's "jurisdiction over a protective order continues even after the Secretary has issued a final decision, for so long as the protective order is in effect." Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), slip op. at 6-7.

PROTECTIVE ORDER; DOL DOES NOT HAVE AUTHORITY TO RESTRICT DISSEMINATION OF INFORMATION OBTAINED OUTSIDE DISCOVERY

When litigants obtain information through discovery, they are free to disseminate the information in the absence of a valid court order. Protective orders, to comport with the First Amendment, may not restrict information obtained outside of discovery. Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995).

REINSTATEMENT NOT SOUGHT; REQUIREMENT THAT ALJ INQUIRE AS TO WHY BEFORE FRONT PAY IS SUBSTITUTED; PART 24 CASES

When a complainant states at a hearing that reinstatement is not sought, the parties or the ALJ should inquire as to why; if such hostility between the parties exists that reinstatement would not be wise because of the irreparable damage to the employment relationship, the ALJ may decide not to order reinstatement, and may order front pay. If, however, the complainant gives no strong reason for not returning to his former position, reinstatement should be ordered. West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995). The Secretary had previously articulated this "no reinstatement sought" procedure in a Surface Transportation Assistance Act case. See Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994).

SETTLEMENT OFFER WITH GAG PROVISION IS ITSELF A VIOLATION OF ERA WHISTLEBLOWER PROVISION

In Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y Apr. 19, 1995), the Secretary found the Respondents in violation the whistleblower provision of the ERA by offering the Complainant a monetary settlement in a related court action in exchange for his agreement to restrict his participation in future regulatory proceedings, and by breaking off negotiations when the Complainant refused to agree to the restriction.

SETTLEMENT; DEPARTMENT'S ENFORCEMENT JURISDICTION

In Williams v. Public Service Electric & Gas Co., 94-ERA-2 (Sec'y Apr. 10, 1995), the Secretary remanded a case to the ALJ for a hearing on whether a settlement agreement had been breached by the Respondent, declining to grant the Complainant's motion for the Secretary to join or initiate an enforcement action in District Court. The settlement agreement included an agreement that the Department of Labor retained jurisdiction over the settlement. The Secretary held that such a clause authorizes the Department to hold further administrative proceedings prior to either the Department or a party seeking enforcement in District Court.

SUMMARY DECISION OR ORDER GRANTING RULE 12(B) MOTION; ALJ'S OBLIGATION TO ALLOW COMPLETION OF DISCOVERY

In the March Newsletter, it was noted that the Secretary had ruled that summary judgment 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). In Flor, the Respondent had supported a motion for summary decision with an affidavit. The Complainant, however, had filed motions to compel responses to its discovery requests. The Secretary noted that answers to some of Complainant's interrogatories could possibly have established the existence of a material fact, and that the Respondent had not answered the discovery requests at the time the ALJ granted summary decision.

Similarly, in Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary reversed an ALJ's decision on motion for summary judgment, where although diligent discovery efforts had been made, the Complainant was not able to obtain a copy of a report to counter the Respondent affidavits in support of its motion for summary decision until the same day the ALJ granted summary judgment, and even then, outside of discovery. In Holden, at the time the ALJ issued his recommended decision, the Complainant had not submitted any evidence to counter the Respondent's motions. The Respondent, however, had resisted complying with the ALJ's order to produce the reports. The reports, it turned out, contained statements, that if found to be true, provided direct evidence that Respondent was blacklisting the Complainant.

Thus, it appears that summary decision should not be granted until a respondent complies with a complainant's discovery requests.

The mere existence of a complainant's request for answers to interrogatories, however, does not prevent an ALJ from recommending a Rule 12(b) order of dismissal without ordering compliance with the discovery requests, where interrogatories are irrelevant or related to information already within the Complainant's control. The Secretary also noted that Complainant made no attempt to justify the asserted need for answers to the interrogatories with reference to the specific information he sought to gain. Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995).

TIMELINESS OF REQUEST FOR HEARING; ACTUAL RECEIPT OF INITIAL FINDINGS GOVERNS

In Bryant v. Bob Evans Transportation, 94-STA-24 (Sec'y Apr. 10, 1995), the Secretary indicated that the timeliness of a request for a hearing would be calculated based upon the date of actual receipt of the initial findings, even though the Department earlier sent the findings to a post office address by certified mail, and they were not picked up.

TIMELINESS OF BLACKLISTING COMPLAINTS; CONTINUING VIOLATION THEORY

Under the continuing violation theory, when a respondent commits an alleged act of blacklisting and a complaint is timely filed, the respondent is exposed to liability for each prior alleged act of blacklisting committed in the same course of discriminatory conduct. Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995).

TIMELINESS; CONTINUING VIOLATION DOCTRINE; SET OF ACTS ALL AFFECTING COMPLAINANT'S WORKING CONDITIONS

The continuing violation doctrine is not invoked merely because the respondent's allegedly retaliatory acts all affected the complainant's opportunities to earn additional pay through overtime or promotion to higher paying positions. This is a set of isolated, permanent decisions involving disparate facts that does not amount to a continuing violation. Gillilan v. Tennessee Valley Authority, 92-ERA-46 and 50 (Sec'y Apr. 20, 1995).

ULTIMATE BURDEN OF PERSUASION; UPON FINDING OF PRETEXT ADDITIONAL PROOF NOT REQUIRED FOR A FINDING THAT THE COMPLAINANT CARRIED THE BURDEN OF PERSUASION

In Bechtel Construction Co. v. Secretary of Labor, No. 94-4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44), the court noted that under St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), the rejection of the defendant's proffered reason for taking the adverse action does not compel judgment for the defendant. Nonetheless, the St. Mary's Honor Center decision indicates that the rejection of defendant's reasons, particularly if the rejection is accompanied by a suspicion of mendacity, may, together with the elements of the prima facie case, suffice to show intentional discrimination; no additional proof of discrimination is required.

---