WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

September 8, 1995

ADVERSE EMPLOYMENT ACTION; VIOLATION OF SETTLEMENT AGREEMENT

Violation of a settlement agreement may under some circumstances constitute a separate, independent violation of the ERA. In Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28, 1995), however, the Secretary found that the Complainant failed to raise a prima facie case of retaliation where, inter alia, there was no final settlement of the prior case approved by the Secretary as required by the ERA, and there was no allegation or indication that action complained about -- reissuing a service review -- fell within the "terms, conditions, or privileges" of the Complainant's employment.

ATTORNEY FEES; REDUCTION WHERE COUNSEL PURSUED UNNECESSARY AND IRRELEVANT MATTERS AND WAS ONLY PARTIALLY SUCCESSFUL

In Varnadore v. Martin Marietta Energy Systems, Inc., 94-CAA-2 and 3 (ALJ June 23, 1995), the ALJ recommended reduction of Complainant's counsel's fee petition by 25% where the Complainant only prevailed on one of five claims (resulting in expungement of a performance appraisal), and where counsel spent many hours pursuing unnecessary and irrelevant matters, and included much irrelevant material in pleadings.

BACK PAY; MITIGATION OF DAMAGES; REASONABLE DILIGENCE STANDARD

In determining the amount of back pay, the burden is on the employer to prove that the complainant failed to mitigate damages by the exercise of reasonable diligence in seeking other suitable alternative employment. To carry that burden, an employer must show both that there were substantially equivalent positions available and that the employee did not use reasonable care and diligence in seeking such positions.

A determination regarding the issue of reasonable diligence requires consideration of the particular characteristics of the complaint at the pertinent time. A complainant "is only required to make reasonable efforts to mitigate damages and is not held to the highest standards of diligence." Moyer v. Yellow Freight System, Inc., 89-STA-7 slip op. at 13 (Sec'y Aug. 21, 1995), quoting Rasimas, 714 F.2d at 624. The complainant must be given the benefit of every doubt in evaluation of his or her efforts to obtain alternative employment. Moyer v. Yellow Freight System, Inc., 89-STA-7 slip op. at 9, 12.

In Moyer, the Secretary Secretary found, inter alia, that

• Complainant's difficulties in finding alternative employment were related to financial instability caused by his wrongful termination;

• the Complainant did not unreasonably leave jobs where the working conditions were more difficult;

• the Complainant was reasonably concerned that prospective employers would be wary of employing him based on the circumstances of his discharge by the Respondent, his legal challenge to that discharge, and the possibility of reinstatement by the Respondent;

• the Complainant's preparations for and attendance at depositions and hearings in this case played a significant role in his interim employment history.

BACK PAY; BENEFITS FROM OTHER SOURCES DO NOT DIMINISH THE RESPONDENT'S LIABILITY

Benefits received from other sources during the period following the complainant's wrongful discharge, as opposed to earnings from alternative interim employment, may not diminish an employer's liability for back pay. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995) (benefits from a "welfare" program, a "soldiers and sailors" fund, unemployment compensation, pension fund, permanent workers' compensation disability, and Social Security disability benefits).

BACK PAY; PERIODS OF UNAVAILABILITY ATTRIBUTABLE TO ILLEGAL ACTS OF EMPLOYER

Although an employer is generally not liable for back pay periods during which the wrongfully discharged employee was disabled, a wrongfully discharged employee will not be held accountable for periods of unavailability for work that are due to the illegal action of the employer. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995) (Complainant's need for hidradenitis surgery and other disabling conditions were connected to his wrongful discharge; Respondent's liability, however, was tolled for a period during which the Complainant could not work because he had broken a finger).

BURDEN OF PROOF AND PRODUCTION; 1992 ERA AMENDMENTS

In Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), the Secretary held that the amendments made by the Comprehensive Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123, to the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, place the burden on the complainant to "demonstrate" that protected activity contributed to the employer's adverse action, not to establish merely a prima facie showing of causation. Further, this standard does not alter the degree of persuasiveness by which a complainant must prove his or her case.

DISMISSAL; FED. R. CIV. P. 12(G) AS BAR TO SUBSEQUENT RULE 12(B) MOTION

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y Aug. 21, 1995), the ALJ recommended dismissal of the Complainant's complaint under the employee protection provision of the Clean Air Act based on the Respondent's motion for dismissal under Fed. R. Civ. P. 12(b)(1). The Respondent's motion was based on an argument that the Complainant was not an "employee" of the Respondent within the meaning of the CAA whistleblower provision. The ALJ found that the case of Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), appeal docketed, No. 95-3648 (6th Cir. June 1, 1995), was dispositive. The Secretary noted that the Complainant had failed to counter the Respondent's factually based motion for summary disposition with affidavits of her own, which virtually ensured a favorable decision for the Respondent on the merits of the motion.

Nonetheless, the Secretary held that because the Respondent had previously moved for dismissal under Rule 12(b)(6) without including the Rule 12(b)(1) jurisdictional defense that the Complainant was not an employee within the meaning of the CAA, Rule 12(g) barred the Respondent advancing another 12(b) motion. The Secretary noted that the Respondent could argue for dismissal on this ground after a hearing on the complaint, but that it could not do so under Rule 12. Thus, the Secretary remanded the case for a hearing.

EMPLOYEE; CONTRACT WORKER PROTECTED REGARDLESS OF CATEGORIZATION AS EMPLOYEE OF CONTRACT FIRM OR FIRM AT WHICH HE PERFORMED THE CONTRACT WORK

The employee protection provision of the ERA protected a contract worker regardless of whether he was an employee of the contract firm or the power corporation at which he performed the contract work. Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), citing Hill v. TVA, 87-ERA-23 and 24 (Sec'y May 24, 1989) (Complainant worked under the direct supervision of the power corporation's managers).

PRETEXT; SHIFTING EXPLANATIONS AS EVIDENCE OF

An employer's shifting explanations may be considered evidence of pretext. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995), citing Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995).

PRETEXT; LACK OF VIOLATION OF ENVIRONMENTAL STATUTE RELEVANT TO MOTIVE

See Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y Aug. 4, 1995), noted below under "protected activity."

PROTECTED ACTIVITY; CONTACT WITH OSHA PROTECTED UNDER CERCLA EVEN IF IT CONCERNED SOLELY OCCUPATIONAL SAFETY AND HEALTH

The environmental acts generally do not protect complaints restricted solely to occupational safety and health, unless the complaints also encompass public safety and health or the environment. A provision in CERCLA, however, protects an employee who "has provided information to a State or to the Federal Government. . . . " 42 U.S.C. § 9610(a). Thus, the Complainant's contact with OSHA was protected activity even if it concerned solely occupational safety and health. Post v. Hensel Phelps Construction Co., 94-CAA-13 (Sec'y Aug. 9, 1995).

PROTECTED ACTIVITY; COMPLAINANT ONLY NEEDS REASONABLE BELIEF THAT ENVIRONMENTAL LAW IS BEING VIOLATED; NONETHELESS, PROOF OF NO VIOLATION MAY BE RELEVANT TO MOTIVE

Even if the respondent's acts were actually legal, a complainant only needs a reasonable belief that his or her employer was violating the law to present a cognizable whistleblower complainant. Nonetheless, proof that the employer was not violating the law does tend to demonstrate that the employer did not seize upon poor performance as a pretext for retaliation. Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y Aug. 4, 1995)

See also Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995) (reasonableness belief sufficient to prevent cognizable complaint).

PROTECTED ACTIVITY; EMPLOYEE WHO REPORTS SAFETY VIOLATIONS AS A ROUTINE PART OF HIS OR HER JOB

The fact that an employee reports safety violations in the course of his or her regular duties does not remove that activity from categorization as protected activity. Jopson v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995) (fact that NRC investigation during which violation was reported was merely routine did not alter protected nature of the activity).

PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON BREAK OF SLEEPING PATTERN; PRESUMPTION THAT REGULATION ESTABLISHES BASELINE OF SAFE OPERATION

In Brandt v. United Parcel Service, 95-STA-26 (ALJ June 29, 1995), the Complainant refused a driving assignment on the ground that he would be too fatigued to drive safely as a result of his having to change his sleeping pattern, although he had more than 24 hours notice of the assignment, and he admitted that taking the assignment would not have violated the hours of service rules set out in Part 395 of 49 C.F.R. The ALJ held that the hours of service rules establish a presumption of safe operation that can be rebutted by evidence showing circumstances peculiar to a particular situation. Based on the scant evidence before him, the ALJ concluded that the Complainant had not shown that his refusal to take the assignment was protected activity.

The ALJ went on to find that, even assuming the Complainant engaged in protected activity, the Respondent had a valid business reason for terminating the Complainant -- if the Complainant could not change his sleeping pattern, he was not suitable for a job that required flexible drivers. The ALJ concluded that "[i]f it is true in general that disrupting a driver's sleep pattern is likely to result in dangerous driving, the hours of service rules should reflect this general truth."

SETTLEMENT; ALJ'S AUTHORITY TO ISSUE FINAL DECISION WHEN CASE WAS SETTLED WHILE ON REMAND FROM SECRETARY

In Earwood v. Dart Container Corp. of Georgia, 93-STA-16 (ALJ Apr. 26, 1995), the ALJ approved a settlement concerning costs and expenses. Although the case was on remand from the Secretary, the ALJ concluded that he had the authority to render a final decision in the matter. See 29 C.F.R. § 1978.111(d)(2).

In a similar situation in Nolan v. AC Express, 92-STA-37 (ALJ Apr. 24, 1995), however, the ALJ concluded that given the prior litigation in the matter, she would forward the matter to the Secretary for issuance of a final decision on the settlement. The ALJ thoroughly reviewed the settlement in a recommended decision. The Secretary thereafter issued an order approving the settlement. Nolan v. AC Express, 92-STA-37 (Sec'y June 28, 1995). The Secretary stated that either the ALJ or the Secretary has the authority to approve the settlement of STAA complaint, but then rather than adopting the ALJ's recommended order, reviewed the settlement de novo.

SETTLEMENT; DOL JURISDICTION TO ENFORCE

In Babel v. Federal Way Water and Sewer District, 95-CAA-23 (pending), the Complainant seeks enforcement of a settlement earlier approved by the Secretary of Labor. The Office of the Solicitor has declined jurisdiction to enforce the settlement based on Kokkonen v. Guardian Life Ins. Co. of America, 114 S. Ct. 1673 (1994).

SETTLEMENT; REVIEW BY SECRETARY REQUIRED UNDER SWDA

The Secretary found in Fletcher v. Travi Construction Corp., 95-SWD-2 (Sec'y Aug. 21, 1995), that a settlement agreement must be reviewed by him to determine whether the terms are a fair, adequate and reasonable settlement of the complaint.

In the April newsletter, it was suggested, contrary to the holding of Fletcher, that Secretarial review of the settlement of a SWDA complaint probably was not required based on the rationale of the ALJ in Biddle v. United States Dept. of the Army, 93-WPC-15 (ALJ May 6, 1994), adopted (Sec'y Mar. 29, 1995). The Fletcher decision does not address the Biddle rationale.

SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA

In Teles v. U.S. Dept. of Energy, 94-ERA-22 (Sec'y Aug. 7, 1995), adopting (ALJ Feb. 28, 1995), the Secretary examined the legislative history of the 1992 amendments to the ERA, and held that sovereign immunity has not been waived under ERA section 211, 42 U.S.C. § 5851.

See also Williams v. Y-12 Nuclear Weapons Plant, 95-CAA-10 (ALJ Aug. 2, 1995) (in regard to an ERA complaint, the ALJ found no waiver of sovereign immunity; in regard to a TSCA complaint, the ALJ found no waiver of sovereign immunity except for complaints involving lead-based paint).

TIMELINESS OF COMPLAINT; AFFIRMATIVE DEFENSE THAT IS WAIVED IF RAISED TOO LATE

The time frame for filing a complaint under the ERA is not jurisdictional, but is a statute of limitations, which is generally considered an affirmative defense. Where the ALJ ordered the parties to submit a statement of contentions prior to the hearing, and held a pre-hearing conference, but the Respondent first raised the issue of the timeliness of the complaint in its post-hearing brief, the ALJ properly found that the Respondent waived timeliness of the complaint as an issue. See 29 C.F.R. § 18.6(d)(2)(v). Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995).

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ACTUAL OR CONSTRUCTIVE NOTICE OF FILING REQUIREMENT

In Roberts v. Tennessee Valley Authority, 94-ERA-15 (Sec'y Aug. 18, 1995), the Complainant maintained that he lacked actual or constructive notice of the filing requirement, which is part of the Rose v. Dole Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) test. The Secretary found that the Complainant could not rely on lack of constructive notice based on his attorney's knowledge where he did not engage an attorney until after the deadline had passed. Further, the decision indicates that Complainant's assertions of lack of notice were not convincing because the Complainant had worked in the nuclear industry for about 25 years and therefore knew or should have known about the filing requirements. The Secretary noted that Rose v. Dole has a fifth factor- -the reasonableness of the complainant's remaining ignorant of his rights--and that a complainant with such experience in the nuclear industry was not reasonably ignorant of his rights under the ERA.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; PREVENTION OF ASSERTION OF RIGHTS; ATTORNEY DISABILITY

In Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28, 1995), the Secretary found that the Complainant's assertion that his attorney's mental incapacity was responsible for a missed deadline was sufficient to withstand a motion for summary decision based on lack of timeliness. See Cantrell v. Knoxville Community Dev. Corp., Nos. 94-5033 and 94-5379, 1995 U.S. App. LEXIS 17458, *3 (6th Cir. July 19, 1995) (if a plaintiff pursued his Title VII claim diligently, yet was abandoned by his attorney due to his attorney's mental illness, equitable tolling of the limitations period may be appropriate).

TIMELINESS OF REQUEST FOR HEARING; FAILURE TO FILE REQUEST WITH OALJ DESPITE SERVICE ON ALL OTHER PARTIES

Where the Respondent served all parties with its request for a hearing, but failed to file that request with the Office of Administrative Law Judges, the ALJ found that the mistake was mere clerical error that would not result in dismissal where the only effect of the mistake was delay in the initial processing of the complaint by the OALJ. Shelton v. Oak Ridge National Laboratory, 95- CAA-19 (ALJ Aug. 2, 1995) (pre-hearing order).

VOLUNTARY DISMISSAL; RESPONDENT'S REQUEST FOR HEARING IS FUNCTIONAL EQUIVALENT OF ANSWER

In Young v. CBI Services, Inc., 88-ERA-19 (Sec'y Aug. 4, 1994), the Secretary held that a respondent's request for a hearing following the adverse preliminary determination of the Wage and Hour Administrator constitutes an answer for purposes of Fed. R. Civ. P. 41(a)(2).

WAGE AND HOUR DETERMINATION; EFFECT OF AFTER REQUEST FOR HEARING

After a hearing is requested on an ERA whistleblower complaint, the case is received de novo. The Wage and Hour determination is of no force or effect, and is not legally prejudicial. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995) (rejecting the Respondent's contention that it was prejudiced by irregularities in the Wage and Hour investigation).