WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

July 3, 1995

AMENDMENT OF COMPLAINT; DISCHARGE DURING COURSE OF ADMINISTRATIVE PROCEEDING

In Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), the Secretary indicated that if the complainant is discharged during the course of the administrative proceeding, and he or she files a timely complaint about the discharge, that additional complaint may be considered by ALJ without remand to Wage and Hour Division.

ATTORNEY FEE PETITION; RELEVANCE OF EXPECTATIONS OF PAYMENT BY COMPLAINANT

In Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y June 9, 1995), the Secretary indicated that whether the complainant was ever actually billed, whether he or she ever paid any of the time charges, or whether the counsel ever expected to be paid, is not controlling in the consideration of the reasonableness of an attorney fee petition.

ATTORNEY MISCONDUCT; SETTLEMENT OF PROCEEDING

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ALJ May 22, 1995), the ALJ recommended approval of a settlement between the Solicitor of Labor and two attorneys charged with misconduct by the original presiding judge, in which the Solicitor determined that there was insufficient evidence of unprofessional conduct by Billie Pirner Garde and Robert Guild to warrant imposition of sanctions.

BACK WAGES; CALCULATION OF SEASONAL WORK BASED ON QUARTERS; USE OF ESTIMATE FOR INCREASED WORK DURING LAST YEAR

In Polgar v. Florida Stage Lines, 94-STA-46 (Sec'y June 5, 1995), the Secretary indicated that it is proper to take into account the seasonal nature of the Respondent's business by computing back pay on a quarterly basis. In addition, it is proper to adjust the back pay award based on evidence of an increase in work at the time of the discharge not attributable to the season.

BACK PAY; OWNER-OPERATOR NOT ENTITLED TO OPERATING EXPENSES NOT ACTUALLY INCURRED

In Ass't Sec'y & Lansdale and Lee v. Intermodal Cartage Co., Ltd., 94-STA-22 (ALJ Mar. 27, 1995), the ALJ found that an owner-operator, whose compensation includes both salary and operating expenses, is not entitled to recover operating expenses as part of a back pay award. Citing by analogy Bing v. Roadway Express, 485 F.2d 441, 453 (5th Cir. 1973) (Title VII claim involving a truck driver).

COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; WEIGHING CONFLICTING MEDICAL EVIDENCE ON CAUSE; CONSIDERATION OF COMPLAINANT'S BEHAVIOR IN DETERMINING SIZE OF AWARD

In Opthof v. Ashland Chemical Co., 94-CAA- 7 (ALJ May 8, 1995), the Complainant sought compensatory damages for emotional distress, and there was conflicting medical evidence concerning the relationship between the Complainant's anxiety and emotional stress and his discharge and harassment on the job. The ALJ cited longshore workers' compensation caselaw to the effect that in weighing conflicting medical evidence, the trier of fact may rely on the common sense of the situation and may view the medical evidence in the context of the relevant sequence of events.

In assessing the scope of the award, the ALJ took into account that there was a mixed motive for the discharge, and concluded that the award should be modest given chronic friction between the Complainant and his supervisors for which the Complainant was partly responsible and which pre- existed the protected activity.

DUAL MOTIVE; CLEAR AND CONVINCING EVIDENCE STANDARD FOR POST OCTOBER 23, 1994 ERA COMPLAINTS; EVIDENCE OF MILITARY-STYLE DISCIPLINE FOR DISOBEYING ORDER

In Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995), the Secretary observed that the Comprehensive National Energy Policy Act of 1992 raised the burden of proof for the respondent in a dual motive analysis in an ERA whistleblower case from a preponderance of the evidence to clear and convincing evidence. 42 U.S.C. § 5851(b)(3)(D). The Secretary noted that while there is no precise definition of "clear and convincing evidence," the courts recognize that it is a higher burden than "preponderance of the evidence" but less than "beyond a reasonable doubt." E.g., Grogan v. Garner, 498 U.S. 279, 282 (1991) and Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 22 n.11 (1991).

In Yule, the Secretary disagreed with the ALJ's assessment of the evidence, and found that there was clear and convincing evidence that the Respondent had a military-style standard of discipline for disobeying an order that justified the Complainant's immediate discharge for what the ALJ had found to be a minor act of insubordinate conduct. The Secretary distinguished a prior instance in which the Complainant was not discharged for insubordination because it consisted of questioning her supervisor's judgment rather than refusal of a direct order.

EMPLOYEE; JOB APPLICANT

In Stultz v. Buckley Oil Co., 93-WPC-6 (Sec'y June 28, 1995), a management consultant who over a period of several months was engaged in negotiations with the Respondent concerning alternatives such as sale of the company to the Complainant or the establishment of a permanent position for the Complainant as general manager was considered an employee for purposes of the environmental whistleblower statutes even though the general manager position was never established.

ERA COMPLAINT FILED MORE THAN 30 DAYS AFTER ADVERSE ACTION, BUT ON OR AFTER OCTOBER 24, 1992 IS TIMELY

In Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995), the Secretary held that an ERA complaint filed more than 30 days after the alleged adverse action, but on or after October 24, 1992, is timely under the 1992 amendments to the ERA. Since by its own terms, the amendments apply to such a complaint, application of the 180 time limit is not retroactive.

FAILURE TO STATE CLAIM; ADEQUACY OF UNSWORN STATEMENT IN RESPONSE TO MOTION

In Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), the Secretary indicated that an unsworn statement of a fellow employee is an adequate response to a motion to dismiss based on failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6).

NRC NOTICE OF VIOLATION ISSUED AFTER ALJ'S DECISION IS NOT CONSIDERED

In Norman v. Niagara Mohawk Power Corp., 85-ERA-13 (Sec'y June 1, 1995), the Secretary found that a NRC Notice of Violation reciting discriminatory treatment of the Complainant was not a proper subject for his review because the Notice was not in existence at the time of the ALJ's decision.

OSHA INVESTIGATION; ONCE A HEARING IS REQUESTED, ADEQUACY OF INVESTIGATION IS NOT AN ISSUE FOR CONSIDERATION

In White v. "Q" Trucking Co., 93-STA-28 (Sec'y June 9, 1995), the Complainant requested reconsideration, alleging, inter alia, that the investigation by OSHA was inadequate. The Secretary denied the motion, holding that the extent of the OSHA investigation was not at issue -- once the Complainant objected to the investigative findings, he was accorded the opportunity for a de novo hearing and assumed the burden of proving unlawful discrimination.

PRIVILEGE OF EMPLOYMENT; TRAINING AND EDUCATION

Training and educational programs that advance an employee in his or her career or enable him or her to perform work more efficiently are a privilege of employment.

Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995).

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

In Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), the Secretary held that an employee who bypasses the company's chain of command to speak directly with the EPA about possible violations of environmental laws may be protected under the CAA. The Secretary had earlier made an analogous ruling in regard to the NRC. See Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order denying motion to reconsider).

PROTECTED ACTIVITY; LACK OF FREON RECOVERY SYSTEM

It is protected activity under the CAA to complain to EPA about the lack of a freon recovery system when refrigeration equipment is repaired. Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995).

PROTECTED ACTIVITY UNDER ERA MUST BE RELATED TO NUCLEAR OR RADIATION SAFETY

In Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993), the Secretary held that a safety complaint not related to nuclear or radiation safety is not protected under ERA merely because the Respondent was licensed by the NRC.

[Note: This is a 1993 case, but it was recently discovered that it was missing from the OALJ Library and the Whistleblower CD-ROM.]

SETTLEMENT; SUBMITTER'S CERTIFICATION OF FOIA EXEMPTION FOUR TO INVOKE REQUIREMENT OF PREDISCLOSURE NOTIFICATION

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y June 19, 1995), the Secretary accepted the notarized signature of a corporate officer claiming information contained in its settlement agreement with the Complaint qualifies for the FOIA exemption for "trade secrets and commercial or financial information of a privileged or confidential nature," 5 U.S.C. § 552(b)(4), as meeting the regulatory requirement under 29 C.F.R. § 70.26 that the predisclosure notification request shall be supported by a statement or certification by an officer or authorized representative of the submitter that the identified information in question is, in fact, confidential commercial or financial information and has not been disclosed to the public.

SETTLEMENT; NO BRIGHT LINE RULE OF NONEXEMPTION

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y June 19, 1995), the Secretary rejected the Wage and Hour Administrator's proposal that the Secretary establish a "bright line" rule that settlement agreements in whistleblower cases are never subject to exemption under the FOIA and that all terms of all settlement agreements must be disclosed.

SETTLEMENT IN WHICH RESPONDENT DOES NOT ADMIT VIOLATION DOES NOT END INQUIRY

In McClure v. Interstate Facilities, Inc., 92-WPC-2 (Sec'y June 19, 1995), the Secretary indicated that a Wage and Hour Division Notice of Determination finding a violation, despite a settlement in which Respondent did not admit violation, has no legal effect once the Respondent requests a hearing seeking to have the Notice vacated. Thus, once the settlement is approved as fair, adequate and reasonable, it is not necessary to vacate the Wage and Hour Notice. Further, the Secretary rejected the Respondent's contention that the Complainant's consent to the settlement agreement ended all allegations of discrimination; the Secretary noted that an environmental whistleblower proceeding is not an ordinary lawsuit where a plaintiff's consent to settle a complaint ends the inquiry.

STIPULATIONS; ENFORCED UNLESS CONTRARY TO PUBLIC POLICY

The parties' stipulations in ERA whistleblower complaints will be enforced unless contrary to public policy. Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y May 31, 1995).