WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

August 7, 1995

AGENCY HEAD AS WITNESS; SANCTIONS FOR NONAPPEARANCE

In Douglas v. Tennessee Valley Authority, 94-CAA-9 (ALJ June 30, 1995), the Chairman of the TVA refused to appear as witness despite the ALJ's order, and Complainant moved for sanctions. The ALJ, noting that his order included a finding that the Chairman's testimony was relevant and necessary, imposed sanctions -- specifically, a finding that one of Complainant's witnesses was credible, and a preclusion of the Respondent from litigating the credibility of the witness.

BACK PAY; TERMINATION UPON UNCONDITIONAL OFFER OF REINSTATEMENT; TOLLING IF OFFER IS INVALID

In Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94- STA-22 (Sec'y July 26, 1995), the Complainant, an owner-operator, was offered reinstatement on July 15, 1994. Because he had sold his trucks because of financial problems related to his discharge, however, he was unable to resume employment until August 24, 1995 when he succeeded in replacing his truck. The Secretary held that, while the back pay period usually is tolled upon an unconditional offer of reinstatement, the period is not tolled where the offer is invalid, such as where immediate resumption of employment is not feasible.

COMPENSATORY DAMAGES; RECOVERY FOR FORCED SALE OF TRUCK; NEED FOR CREDIBLE BASIS NEED TO ESTABLISH ACTUAL LOSS

In Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94- STA-22 (Sec'y July 26, 1995), the Secretary recognized that compensatory damages may be recovered by a complainant for losses incurred by the sale by an owner-operator's truck occasioned by his or her financial situation resulting from the Respondent's retaliatory acts. Generally, a forced sale is unlikely to result in a sale for market value, and there is a presumptive loss. Further, the Respondent generally has uncertainty in the amount of damages resolved against it. Where, however, the record fails to provide a credible basis for estimating the value of an actual loss, such an award will not be made.

DEPOSITION TESTIMONY DISFAVORED

In Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995), the testimony of the Respondent's final two witnesses was presented by deposition. The Secretary, in a footnote, observed that "[o]ne of the purposes of conducting a hearing before an ALJ is so that the ALJ can hear all of the testimony and assess the credibility of the witnesses. Having the two main witnesses for the Respondent testify only through deposition defeats this purpose and should therefore be discouraged in all but extraordinary situations."

DUAL MOTIVE; RESPONDENT MUST ESTABLISH BOTH THAT IT HAD A LEGITIMATE REASON FOR THE ADVERSE ACTION AND THAT IT WOULD HAVE TAKEN THE ACTION FOR THAT REASON ALONE

The existence of a legitimate reason for the taking of adverse employment action against a complainant does not, by itself, carry a respondent's burden in a dual motive case. Rather, the record must establish that the respondent would have taken the action for the legitimate reason alone. See Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995).

HEARSAY; INADMISSIBLE TO PROVE CONDITION OF TRUCK BUT MAY BE USED TO PROVE COMPLAINANT'S PROTECTED ACTIVITY OR GOOD FAITH AND REASONABLE BASIS FOR ACTION

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the Respondent proffered a hearsay objection to the admission of out-of-court statements of mechanics and policy officers that concerned the mechanical condition of Respondent's trucks.

The ALJ held:

Under decisions and regulations promulgated by the Secretary of Labor, out-of-court statements are generally not admissible in proceedings under the STAA to prove the truth of the matters asserted in such statements unless the statements fall within one or more of the specific exceptions set forth at 29 C.F.R. § 18.803-804. See Hadley v. Southeast Coop. Service Co., 86-STA-24 (June 28, 1991); 29 C.F.R. §1978.106; 29 C.F.R. §18.101. Although these exceptions are more extensive than the various exceptions to the hearsay rule set forth in the Federal Rules of Evidence and common law evidence treatises, they are not so extensive that they would ordinarily permit out-of-court statements of mechanics or police officers to be admitted for the purpose of proving that a particular vehicle was unsafe to operate. Hence, such statements cannot be regarded as probative evidence concerning the mechanical condition of the various trucks driven by the Complainants. However, it is also important to recognize that such statements can be admitted into evidence for other purposes, such as showing that a Complainant engaged in a protected activity or that a Complainant had a reasonable and good faith basis for a particular action. Thus, to the extent that such hearsay statements have been admitted into evidence in this proceeding, they have been admitted solely for such purposes and have not been treated as probative in any other respect. . . .

Slip op. at 3-4 n. 4.

[Editor's note: The general rules of practice and procedure at 29 C.F.R. Part 18 apply to STAA whistleblower complaints. 29 C.F.R. § 1978.106(a). The nuclear and environmental whistleblower complaints adjudicated under 29 C.F.R. Part 24, however, do not incorporate the rules of evidence in Part 18, although "rules or principles designed to assure production of the most probative evidence available shall be applied." 29 C.F.R. § 18.5(e).]

INDIVIDUAL LIABILITY FOR NONEMPLOYERS

Individuals who are not employers are not subject to liability under the employee protection provisions of the TSCA and the CAA. Thus, in Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y July 1, 1995), four management employees and a Wage & Hour investigator were properly dismissed as Respondents.

PROTECTED ACTIVITY; CONTACT WITH PRIVATE PERSON

Providing information to a private person for transmission to responsible government agencies, or for use in environmental lawsuits against one's employer, is protected activity under the CAA, SWDA, TSCA, and FWPCA. Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995).

PROTECTED ACTIVITY; CONTACT WITH THE PRESS

Contact with the press is protected activity under the whistleblower statutes. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995)

PROTECTED ACTIVITY; RELEVANCE OF COMPLAINANT'S MOTIVES

If a complainant had a reasonable belief that the Respondent was in violation of an environmental act, that he or she may have other motives for engaging in protected activity is irrelevant. The Secretary concluded that if a complainant is engaged in protected activity which "also furthers an employee[']s own selfish agenda, so be it." Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995).

PROTECTED ACTIVITY; MANNER OF COMPLAINT; USE OF INTEMPERATE LANGUAGE

When a complainant uses intemperate language or engages in impulsive behavior associated with the exercise of whistleblower rights, there should be a balancing between the right of the employer to maintain shop discipline and the "heavily protected" rights of employees -- to fall outside statutory protection, an employee's conduct actually must be indefensible under the circumstances. While employees are protected when presenting safety related complaints, they do not have carte blanche to choose the time, place and/or method of making those complaints. An otherwise protected employee is not automatically absolved from abusing his or her status and overstepping the defensible bounds of conduct, even when provoked. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995)

To the same effect: Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995) (Complainant's behavior not indefensible where his actions may have disrupted a demonstration and an inspection briefly, but the Complainant did not persist, and the events continued).

RESPONDENT'S KNOWLEDGE; SMALL SHOP DOCTRINE

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the ALJ noted that the fact that the Respondent was a small, informally managed family enterprise may be sufficient evidence by itself to warrant a finding that the Complainant's protected activities were made known to the official who actually informed the complainant that he was being fired. See D & D Distribution Co. v. NLRB, 801 F.2d 636, 641 (discussing the "small shop doctrine"); Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989).

SOVEREIGN IMMUNITY UNDER THE CAA, CWA, SWDA AND TSCA

With the exception of whistleblower complaints involving lead-based paint, sovereign immunity has not been waived for purposes of the TSCA employee protection provision. Thus, in Stephenson v. National Aeronautics & Space Administration, 94- TSC-5 (Sec'y July 1, 1995), NASA was properly dismissed as a Respondent where the complaint did not concern a lead-based paint hazard. A CAA complaint against NASA, however, was cognizable. See Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994).

The Secretary noted that the United States Supreme Court had held in Department of Energy v. Ohio, 112 S.Ct. 1627, 1633-1635 (1992), that neither the Clean Water Act nor the Solid Waste Disposal Act contains a clear enough waiver of sovereign immunity to subject the United States to civil penalties for past violations.

SURVEILLANCE OF EMPLOYEES NOT PER SE DISCRIMINATORY

In Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995), the Secretary declined to establish a per se rule that covert employer surveillance of employees engaged in protected activities is "inherently discriminatory" and proof in and of itself of illegal motive. In Scott, the Secretary found that the Respondent had a legitimate business reason to investigate leaks of its documents, and the record did not show that it intended to use a surveillance to intimidate its employees from making safety or health complaints.

TOLLING BASED ON DATE COMPLAINANT LEARNED OF RETALIATORY MOTIVE; MUST BE EVIDENCE THAT RESPONDENT CONCEALED OR MISLEAD COMPLAINANT

In Hatcher v. Complete Auto Transit, 94-STA-53 (Sec'y July 3, 1995), the Complainant filed his STAA complaint 341 days after termination of his employment and 463 days after engaging in allegedly protected activity. The Complainant alleged that he did not know that the protected activity was used as a basis for the discharge until "much later." The ALJ found the complaint timely because the Respondent did not notify the Complainant that the incident that Complainant alleged was protected was used against the Complainant to justify his discharge.

The Secretary reversed the ALJ's finding, finding no basis for equitable tolling of the 180- day filing period. The Secretary noted that there was no requirement that an employer give notice to the employee of each fact that might be considered in rendering a discharge decision. Although the regulations prohibit the employer from concealing or misleading the employee regarding the basis for the discharge decision, there was no evidence in the record on which to base a conclusion that the Respondent concealed or mislead the Complainant in this regard.

UNDERLYING VIOLATION MUST INVOLVE COMMERCIAL MOTOR VEHICLE SAFETY

In Foley v. J.C. Maxxwell, Inc., 95-STA-11 (Sec'y July 3, 1995), the Complainant alleged that he was fired because he filed a complaint with OSHA concerning exposure to asphalt fumes. The Secretary concluded that the Complainant had not engaged in protected activity under STAA, 49 U.S.C. § 31105(a)(1), which involves commercial motor vehicle safety, but alleged only a potential OSHA violation.