Office of Administrative Law Judges
United States Department of Labor
January 16, 1996
This newsletter covers the materials that became available during
the period from November 28, 1995 to January 16, 1996.
ADVERSE ACTION; PROVISION OF ADVERSE RECOMMENDATION TO
OPM [N/E Digest XIII B 17]
Providing an adverse recommendation to the Office of
Personnel Management is tantamount to having an adverse
performance appraisal on file in an employer's personnel
office, and is adverse employment action (that is
discrimination with respect to compensation, terms,
conditions, or privileges of employment). Leveille v.
New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995).
ADVERSE ACTION; HOSTILE WORK ENVIRONMENT/CONSTRUCTIVE
DISCHARGE; REASONABLE STEPS TO RECTIFY; REQUIREMENT THAT
ENVIRONMENT WOULD ACTUALLY COMPEL A REASONABLE PERSON TO
RESIGN [N/E Digest XIII C]
In Boudrie v. Commonwealth Edison Co.,
95-ERA-15 (ALJ
Dec. 11, 1995), the ALJ reviewed the law concerning what
constitutes a hostile work environment in his recommended
decision and order. Extending the discussion of the
Secretary of Labor in English v. General Dynamics
Corp., 85-ERA-2 (Sec'y Feb. 13, 1992), the ALJ noted
that the United States Supreme Court has declared that
evidence of an alleged hostile work environment must satisfy
both an objective and subjective test in order to constitute
discriminatory conduct. Harris v. Forklift Systems,
Inc., 507 U.S. __, 114 S. Ct. 367 (1993). The ALJ also
noted decisions listing factors to consider when determining
the extent of possibly hostile activity. He noted that the
Seventh Circuit has stated that if an employer takes
reasonable steps to discover and rectify acts of harassment
of its employees, its legal liability is discharged.
Baskerville v. Culligan Int l Co., 50 F.3d 431
(1995). Moreover, the ALJ reviewed Fifth and Seventh
Circuit decisions indicating that circumstances that might
adequately establish a hostile work environment will not
necessarily suffice to establish a constructive discharge;
the severity and the pervasiveness of the harassment must be
so great to compel the reasonable person to resign. See
Landgraf v. USI Film Prod., Inc., 968 F.2d 427, 430 (5th
Cir. 1990); Chambers v. American Trans. Air, Inc., 17
F.3d 998, 1005 (7th Cir. 19xx), cert. denied, 115 S.
Ct. 512 (1994); Saxton v. American Tel. & Tel.
Co., 10 F.3d 526, 536-37 (7th Cir. 1993).
AMENDMENT OF COMPLAINT; IDENTIFICATION OF SOURCE OF ADVERSE
REFERENCE AFTER FILING OF COMPLAINT [N/E Digest II B 1 b]
In Leveille v. New
York Air National Guard,
94-TSC-3 and 4 (Sec'y Dec. 11, 1995), the Complainant obtained an
employment information form pursuant to the Freedom of
Information Act from the Office of Personnel Management.
The form was redacted pursuant to the Privacy Act because a
source requested confidentiality. The Secretary agreed with
the ALJ that there was sufficient data in the form to permit
an identification of the source as one of the Complainant's
former supervisors only after the discrimination complaints
were filed. Thus, the Secretary approved amendment of the
complaints to include an alleged violation concerning the
information supplied on the form.
ATTORNEY'S FEE REQUEST; ALJ NOT BOUND BY OBJECTIONS OF
OPPOSING PARTY [N/E Digest XVI E 2]
In Sprague v. American Nuclear Resources,
Inc., 92-
ERA-37 (ALJ Dec. 5, 1995), the Complainant maintained that
the Respondent waived its right to object to an attorney fee
request item because the objection was untimely. In his
recommended order, the ALJ rejected this argument, finding
that it is within the discretion of the ALJ to determine
what is a reasonable fee, and that he was not bound by the
objections of the opposing party in a review of the fee
petition.
ATTORNEY'S FEES; WORK BEFORE CIRCUIT COURT WHERE JURISDICTION
WAS DECLINED; DOL'S AUTHORITY OVER FEE REQUEST [N/E Digest XVI E 4 c]
In Sprague v. American Nuclear Resources,
Inc., 92-
ERA-37 (ALJ Dec. 5, 1995), the ALJ recommended a finding
that work done with respect to responding to the
Respondent's appeal to the Sixth Circuit was work incurred
in connection with bringing the complaint where the Sixth
Circuit never accepted jurisdiction over the complaint
because the Secretary had not yet issued a final appealable
order.
ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEY
MISCONDUCT PROCEEDING [N/E Digest XVI E 1]
In Rex v. Ebasco Services, Inc., 87-ERA-6 and
40 (ALJ
Nov. 29, 1995), the ALJ recommended denial of a petition for
an award of fees under the Equal Access to Justice Act
(EAJA), 5 U.S.C. § 504 and its implementing DOL
regulation at 29 C.F.R. § 16.101-16-308. The petition
arose in connection with a disciplinary proceeding arising
out the underlying whistleblower case. The ALJ found that
the disciplinary proceeding was not a covered adversary
adjudication within the meaning of the EAJA because an on-
the-record 5 U.S.C. § 554 hearing is not statutorily
or constitutionally required for such a disciplinary
hearing.
ATTORNEY'S FEES AND COSTS; INTERIM ORDER [N/E Digest XVI E 7]
In Gaballa v. The
Atlantic Group, 94-ERA-9 (Sec'y
Dec. 7, 1995)(interim order), the Secretary followed the
precedent set in Varnadore v. Oak Ridge National
Laboratory, 94-CAA-2 and 3 (Sec'y Sept. 11, 1995), that
" where a complainant has prevailed after a hearing
before an
ALJ and a recommended decision issued, the Secretary shall,
pursuant to § 5851(b)(2)(A) and (B), issue an interim
order awarding to the complainant, an amount equal to the
aggregate amount of all costs and expenses (including
attorneys' and expert witness fees) which the Secretary
determines to have been reasonably incurred for, or in
connection with, bringing the complaint. If [a respondent]
is successful in its appeal of the ALJ's recommended
decision, it is anticipated that recoupment of the
attorney's fees would not pose a substantial problem."
Varnadore at 9-10; 29 C.F.R. § 18.36 (1994).
ATTORNEY'S FEES; LODESTAR METHOD [N/E Digest XVI E 3 a]
In calculating attorney fees under the ERA, the Secretary
uses the lodestar method, which requires multiplying the
number of hours reasonably expended in pursuing the
litigation by a reasonable hourly rate. Gaballa v.
The Atlantic Group, 94-ERA-9 (Sec'y Dec. 7, 1995)
(interim order).
ATTORNEY'S FEES; INCREASE IN RATE; REFERENCE TO PRIOR
REQUESTS [N/E Digest XVI E 3 d vi] [new section]
In Gaballa v. The
Atlantic Group, 94-ERA-9
(Sec'y
Dec. 7, 1995), the Secretary noted that he had determined an
hourly rate of $190 to be reasonable in a 1994 case in which
Gaballa's attorney had appeared. The Secretary found that a
5% increase in that attorney's hourly rate -- to $200 -- was
appropriate. The attorney had requested a rate set at $225
per hour.
ATTORNEY'S FEES; BLACKLISTING CASE; FEES CANNOT INCLUDE HOURS
RELATING TO PRIOR UNDERLYING DISCRIMINATION CASE [N/E Digest XVI E 3 d ii]
In Gaballa v. The
Atlantic Group, 94-ERA-9
(Sec'y Dec. 7, 1995), the attorney failed to distinguish between
time spent pursuing an underlying discrimination case and
the current blacklisting case. The Secretary held that the
Complainant was only entitled in the instant proceeding to
fees incurred in furtherance of his blacklisting litigation,
and rejected claims for costs and expenses that could not be
clearly attributed to the blacklisting case.
BACK PAY; PERIOD BEYOND ORIGINAL TERM OF EMPLOYMENT OF
CONTRACT WORKER [N/E Digest XVI C 2 b i]
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(ALJ
Nov. 7, 1995), the ALJ applied the analysis of Walker v.
Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) in
computing back pay for a contract employee. Walker
indicates that in cases of fixed term contracts, a
complainant must initially introduce some evidence showing
that the economic injury resulting from the discharge
extended beyond the employment term. Walker, 684
F.2d at 1362. This proof may consist of no more than a
showing that the particular complainant's contract had been
renewed in the past, that contracts of similarly situated
employees had been renewed, or that the employer had made a
promise of continued employment. In Doyle,
the
evidence failed to show that the Complainant would have been
rehired at the facility he was working at; however, the
evidence also showed that similarly situated employees found
work at other facilities under contract and that the
Complainant would have found such work except for the
Respondent's denial of unescorted access to the Complainant
(which in effect, was a blacklisting). The ALJ concluded
that the Respondent was liable for back pay beyond the
original term of employment.
BLACKLISTING; LACK OF ACTUAL INJURY DOES NOT SHIELD A
RESPONDENT FROM LIABILITY [N/E Digest XIII B 1]
The fact that a blacklisted complainant was not refused
employment or did not suffer an actual employment injury
does not shield a respondent from liability. Leveille
v.
New York Air National Guard, 94-TSC-3 and 4
(Sec'y
Dec.
11, 1995). In the context of the facts in
Leveille,
blacklisting was simply marking an employee for avoidance
in employment because she engaged in protected activity;
communication of an adverse recommendation is evidence of
the decision to blacklist the employee. The Secretary
stated that "[b]lacklisting is the quintessential
discrimination, i.e., distinguishing in the treatment
of employees by marking them for avoidance." Although
the
conversation in which the Complainant's former supervisor
made a negative employment recommendation was not a
legitimate call from a prospective employer but from a
employment reference checking service, the Secretary
indicated that he would follow his finding in Earwood v.
Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994)
(STAA case), that "effective enforcement of the Act
requires
a prophylactic rule prohibiting improper references to an
employee's protected activity whether or not the employee
has suffered damages or loss of employment opportunities as
a result."
COMPENSATORY DAMAGES; COMPARATIVE AWARD [N/E Digest XVI D 4 a]
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(ALJ
Nov. 7, 1995), the ALJ reviewed other employment
discrimination cases in which damages for emotional pain,
emotional stress and anxiety, and damage to reputation, had
been awarded, and recommended that under the facts of the
case, an award of $40,000 was appropriate.
EVIDENCE; ELECTION NOT TO CALL REBUTTAL WITNESS; ADVERSE
INFERENCE [STAA Digest III J]
In Tanguay v.
Westside Transport, Inc.,
95-STA-28
(Sec'y Nov. 22, 1995), the Secretary noted with apparent
approval the ALJ's drawing of an adverse inference from the
respondent's election not to call its field representative
as a rebuttal witness.
LEGITIMATE BUSINESS REASONS; CHAIN-OF-COMMAND REQUIREMENTS
MAY UNDERMINE PUBLIC HEALTH AND SAFETY [N/E Digest XI B 2 b 9]
In Leveille v. New
York Air National Guard,
94-TSC-3
and 4 (Sec'y Dec. 11, 1995), the ALJ found that the
Complainant's former supervisor gave negative employment
references, not because of the Complainant's protected
activity as an environmental protection specialist (the ALJ
noting that the supervisor was himself concerned with
environmental problems and had conveyed to the Complainant
his intent to seek solutions and the existence of plans
already put into motion), but rather the Complainant's
unwillingness to accept the base's Major General's decision
to work through the New York State Department of
Environmental Conservation rather than involve the National
Guard Bureau.
The Secretary rejected the ALJ's analysis, finding that it
"would condone an employer mandate that all
environmental
complaints be handled internally with no recourse to any
external regulatory agencies, depending upon what the
'person in charge' determined to be the 'correct route'."
Slip op. at 15-16. The Secretary also rejected the ALJ's attempt
distinguish other chain-of-command decisions. The Secretary
wrote:
[A]n employer may not, with impunity, discipline
an employee for failing to follow the chain-of-command,
failing to conform to established channels, or
circumventing a superior, when the employee raises an
environmental health or safety issue.
* * *
Such restrictions on communication -- whether by
the 'person in charge' or through adherence to the
'chain-of-command' -- would seriously undermine the
purpose of the environmental whistleblower laws to
protect public health and safety.
Slip op. at 16-17 (citations omitted).
LEGITIMATE BUSINESS REASONS; REMOVAL OF COMPLAINANT IN EFFORT
TO SATISFY NRC POLICY [N/E Digest XI B 2 c]
In Talbert v. Washington Public Power Supply
System,
93-ERA-35 (ALJ Oct. 20, 1995), the ALJ concluded that the
Respondent's very existence depended on it making changes in
personnel and the attitude of its employees in response to
the NRC's finding the Respondent needed to change its
"culture" of operating as though Emergency
Operating
Procedures (EOPs) were advisory only. The NRC considered
the view that EOPs were advisory to be
"blasphemy". The
Complainant, a person with a reputation as a brilliant
engineer, was viewed by at least some of the Respondent's
executives as the principal protagonist of the belief that
engineers and operators had the discretion to depart from
EOPs if they thought best. The Complainant had expressed
his view that following a certain EOP would be wrong and
dangerous at a meeting in which Respondent's executives were
explaining that company policy was that EOPs were "the
law"
and had to be followed rigidly, or changed through a
procedure. The ALJ concluded that "the Respondent's
need to
satisfy the NRC was so compelling that it would have removed
[the Complainant] . . . even if he had never raised the
[issue of EOP safety at the EOP meeting] or later."
MOTIVE FOR BLACKLISTING; MAY BE INFERRED FROM VEILED
REFERENCES EVEN IF PROTECTED ACTIVITY IS NOT MENTIONED [N/E Digest XIII B 1]
In Leveille v. New
York Air National Guard,
94-TSC-3 and 4 (Sec'y Dec. 11, 1995), a Complainant's
former supervisor gave a negative employment reference
to a reference checking company. The former supervisor
did not mention any of the Complainant's protected
activity, but referred to that Complainant's spousal
relationship, her being a combative and argumentative
employee and her otherwise poor interpersonal skills,
as being reasons he would not hire her. The Secretary
noted that the former supervisor commented that the
interpersonal skills were only part of the problem, and
declining to comment further, told the reference
checker that "I think you know how to listen
between the lines." The Secretary found that the
references to
other, unstated reasons for his opinions suggest
illicit motivation, especially since this conversation
followed by several months a letter from the
Complainant's attorney admonishing the former
supervisor not to denigrate the Complainant because she
had engaged in protected activity.
REBUTTAL; COMPLAINANT'S ULTIMATE BURDEN TO ESTABLISH BOTH
PRETEXT AND THE PRESENCE OF INTENTIONAL DISCRIMINATION [N/E Digest XI B 3]
Once a respondent proffers a legitimate nondiscriminatory
reason for taking adverse action and thus successfully
rebuts the presumption of discrimination raised by the prima
facie case, the complainant must prove that the respondent's
reason was not the true reason for the adverse action
and that the protected activity was. Cf. St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993)(Title VII, Civil Rights Act of 1964). Proving only
that the proffered reason was unbelievable does not compel a
finding for the complainant. Rather, the trier of fact must
find intentional discrimination in order for the complainant
to prevail. Leveille
v. New York Air National Guard,
94-TSC-3 and 4 slip op. at 7-8 (Sec'y Dec. 11, 1995).
TESTIMONY; LACK OF CORROBORATING WITNESSES [N/E Digest X E]
Where a Complainant testified that she had learned about
certain instances in which a former supervisor had provided
adverse references to her employers or to a prospective
employer, but that testimony was not corroborated and the
former supervisor denied speaking to that Complainant's co-
workers or being aware that she worked for the respective
employers, the Secretary found that the Complainant had
failed to produce the witnesses necessary for substantiation
of her blacklisting charge. Leveille v. New York
Air National Guard, 94-TSC-3 and 4, slip op. at 9-10
(Sec'y Dec. 11, 1995).
TIMELINESS; APPLICATION OF EQUITABLE PRINCIPLES; FRAUDULENT
CONCEALMENT [N/E Digest IV B 2]
In Hill v. United States Dept. of Labor, 65
F.3d 1331
(6th Cir. 1995), the court held that the limitations period
in Section 210 of the Energy Reorganization Act (now Section
211), is not jurisdictional, and may be extended when
fairness requires. Equitable principles may be applied when
a defendant fraudulently conceals its actions, misleading
the plaintiff respecting his or her cause of action. To
establish a fraudulent concealment to avoid a statute of
limitations, the plaintiff must prove (1) wrongful
concealment by the defendants of their actions; (2) failure
of the plaintiff to discover the operative facts that are
the basis of the cause of action within the limitations
period; and (3) the plaintiff's due diligence until
discovery of the facts. The party relying on equitable
tolling through fraudulent concealment has the burden of
demonstrating its applicability; such an equitable remedy is
narrowly applied because statutes of limitation are vital to
society's welfare and are favored in the law.
The court noted that a claim of fraudulent concealment is
technically not for equitable tolling but of equitable
estoppel.
Concealment of motives versus concealment of
actions
In Hill, the Complainants asserted that, as a
matter
of law, equitable tolling applies where the defendant
concealed the motives for its actions, even though the
essential elements of a claim are known. The Secretary had
concluded otherwise -- that equitable tolling applies only
when a respondent concealed its actions giving rise to a
cause of action, and not to concealment of motives. The
court agreed with the Secretary, holding that "[a]
deception
regarding motive supports application of equitable tolling
only where the deception conceals the very fact of
discrimination. . . . Equitable tolling through fraudulent
concealment is not warranted where a petitioner is aware of
all the essential facts constituting discriminatory
treatment but lacks direct knowledge or evidence of the
defendant's subjective discriminatory motive."
Hill,
65 F.3d at 1337 (citations omitted).
Discovery of operative facts within limitations
period.
In Hill, the court found that the Complainants
failed
to establish that they had failed to discover the operative
facts upon which they based their claim within the
limitations period. The Complainants were employed by the
Respondent (TVA) to investigate and report nuclear safety
concerns. Thus, they knew they had been engaged in
protected activity, that the Respondent was aware of the
protected activity, and that the Respondent had taken
adverse action against them in terminating their contract.
The court held that this information alone was sufficient to
cause a reasonable mind (much less an expert on § 210
which Complainants held themselves out to be), to suspect
that the Respondent's adverse actions might be in
retaliation for the protected activity. Additional factors,
inter alia, were the circumstances surrounding the
Respondent's employment of the Complainant's employer as an
intermediary between the Respondent and the NRC (which
included a concern that the Respondent might retaliate
against employees for reporting safety concerns), the
economic impact of Complainant's employers's reports of
preventing the opening of Respondent's Watts Bar facility,
and knowledge that the Respondent had complained about the
Complainant's employer's reporting of safety concerns to
Congress.
The court repeated an earlier holding that "To hold
that a
tolling or suspension of the limitation of actions must
continue unless or until proof positive existed of a wrong
(which might never be established in fact) would abort the
policy of the law of repose in statutes of limitations of
diligence in the equitable principles permitting suspension
of them."" Hill, 65 F.3d at 1338, quoting
Pinney
Dock & Transp. Co. v. Penn Central Corp., 838 F.2d
1445, 1478 (6th Cir. 19xx), cert. denied, 488 U.S.
880 (1988).
Due diligence
The court found that the Complainants failed to demonstrate
due diligence, there being evidence that the Complainants
were in fact, or should have been, suspicious of retaliatory
motive. The court wrote that [i]n order for a fraudulent
concealment claim to prevail, a plaintiff must prove that
the defendant's attempts to mislead the plaintiff actually
succeeded. Hill, 65 F.3d at 1338 (citation
omitted).
The Complainants argued that just because they disagreed
with the Respondent's reasons for terminating their
employer's contract does not mean they were aware that the
reasons were pretextual. The court found that this argument
missed the point: they had sufficient facts at the time to
evaluate the propriety of the reasons, and had a legal duty
to investigate whether the Respondent acted on illegal
motivations.
WHISTLEBLOWER PROTECTION EXTENDS TO SPOUSE OF PERSON ENGAGED
IN PROTECTED ACTIVITY [N/E Digest XII A]
In Leveille v. New
York Air National Guard, 94-TSC-3
and 4, slip op. at 8 (Sec'y Dec. 11, 1995), the Secretary
adopted the ALJ's finding that a spouse is protected against
discrimination motivated by his or her spouse's protected
activity under the environmental whistleblower provisions.