WHISTLEBLOWER NEWSLETTER
United States Department of Labor
Office of Administrative Law Judges Law Library

ACTIONABLE CLAIM; HIRING FORMER DOL OFFICIAL AS LEGAL CONSULTANT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that Respondent violated whistleblower provisions when it hired the former Director of the Office of Administrative Appeals to act as a legal consultant in this and other cases. Citing Varnadore v. Oak Ridge National Laboratory, 92-CAA-2, slip op. at 61 (ARB June 14, 1996), pet. for review filed, No. 96-3888 (6th Cir. Aug. 13, 1996), the Board held that such a claim is not actionable under the whistleblower provisions. The Board also noted that Complainant's complaints were not pending before the Department while the former Director had been Director. Therefore, the Board granted dismissal for failure to state a claim upon which relief may be granted.

ACTIONABLE COMPLAINT; USE OF MEDICAL RECORDS
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that the whistleblower provisions were violated when Respondent's medical department doctors provided information contained in Complainant's medical files to the company's managers and attorneys. Complainant had requested that Respondent's medical department issue a restriction for her from working with chemical, radioactive, and hazardous substances.

The Board noted that in the state where Complainant worked, patients do not have a privilege for communications with physicians. On the other hand, that state has a statute that entitles an employer to obtain the medical records of a workers' compensation claimant. The Board found that "...to the extent that a physician/patient privilege exists in this case, ... a worker restriction request based on a employee's health is analogous to a workers' compensation claim and ... the employer, through appropriate personnel, is entitled to examine the requesting employee's medical records." Slip op. at 12. Since Complainant did not allege that her medical information was dispensed to persons who did not need to review her work restriction request, she had not stated a claim upon which relief could be granted.

ACTIONABLE COMPLAINT; POSTINGS REQUIRED BY ENVIRONMENTAL ACTS
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that Respondent failed to make adequate postings advising employees about their rights under the employee protection provisions of the environmental acts because the posting contained only the text of the statutory provisions and no explanatory material, they were behind glass, and they were often covered by other materials. Complainant alleged that such posting were adverse to her because they might chill other employees from giving truthful testimony her in case. The Board found that the posting of the text of the employee protection provisions fully comported with Respondent's statutory obligations, and that Complainant had not stated a claim upon which relief could be granted.

ADVERSE ACTION; OFFICE ASSIGNMENT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that she was discriminated against when after a six month disability leave, her old office no longer existed and she was assigned to the office of another worker who was absent on pregnancy leave. The Board found that the office assignment was not discriminatory as a matter of law where Respondent made unrefuted assertions in support of its motion for summary decision that office space was at a premium, that the office provided to Complainant was the only one available, and Complainant's deposition testimony had been that the office "was small, but it was adequate."

ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; ASSIGNMENT OF SUPERVISOR; STATEMENTS ABOUT COMPLAINANT'S FUTURE IN WORK GROUP
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that a hostile work environment was created when she was assigned to work directly for a manager "whose false testimony the ALJ found unbelievable due to [Complainant's] truthful testimony" in the whistleblower case of a co-worker in which the manager and Complainant had been witnesses. Complainant also complained that this manager told her he had no long range plans for her and frustrated a transfer.

Respondent filed a motion for summary decision supported by an affidavit of the manager, and deposition testimony in support of its nondiscriminatory reasons for assigning Complainant to work for the manager. Complainant's only counter was a hearsay declaration of a co-worker indicating that Complainant had told him about a meeting in which the manager said he no longer had a job for Complainant and that she had no future in the division. The co-worker related that Complainant cried for thirty minutes to an hour, and that later he heard the manager say that Complainant was no longer going to be in the work group.

The Board held that this statement, as a matter of law, did not raise a genuine issue of material fact on hostile work environment: the manager's statement merely reflected reality -- Complainant transferred to work in a different group that same summer. The Board found that even if Complainant was upset by the statement, she had failed to provide evidence to support her belief that the statement was part of a hostile work environment.

ADVERSE ACTION; MEDICAL DEPARTMENT'S FAILURE TO ISSUE WORK RESTRICTION DOCUMENT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that she was discriminated against by the absence of a response from the medical department to her request to be restricted from working with chemical, radioactive, and hazardous substances. In a motion for summary decision, Respondent presented a deposition of Complainant's superior, who stated that the division had already determined that Complainant would not be given any kind of work potentially exposing her to toxic materials or unsafe levels of radiation; moreover, following a transfer, the superior took pains to assure Complainant that the new job would not involve any such exposures.

In opposing the motion, Complainant's sole evidence was the declaration of a co-worker that he had received a medical declaration following sustaining a broken jaw in a traffic accident several years earlier. The Board, assuming the truth of the declaration, found that the issuance of medical declarations of a temporary nature were dissimilar to a request for a medical declaration of a permanent nature, and that the declaration did not raise an issue of material fact. The Board found Respondent entitled to judgment as a matter of law because the company had acted to remove Complainant from exposures even without a medical department restriction.

Complainant alleged in a second complaint (involving only the environmental whistleblower statutes) that Respondent's continued lack of a medical department response to her request for a work restriction was a violation. The Board found this "splitting hairs of no legal consequence" in view of the fact that Respondent did take other action in response to her request. Moreover, the Board noted that Complainant was on disability leave during the thirty days preceding the filing of the second complaint -- therefore, Respondent could not have required her to work with the feared substances at any time during that period. Thus, the Board found that the second complaint failed to prove any set of facts that the absence of a medical department response violated the whistleblower provisions of the environmental acts.

DEFINITION OF "EMPLOYEE"; SIXTH CIRCUIT'S APPROVAL OF DOL'S USE OF DARDEN TEST FOR CONTRACTORS
[N/E Digest XIV A 2 d]

In Reid v. Secretary of Labor, No. 95-3648 (6th Cir. Dec. 20, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33984)(case below, 93-CAA-4), the Sixth Circuit affirmed the Department of Labor's use of the common law definition of "employee" enunciated by the Supreme Court in Nationwide Mutual Ins., Co. v. Darden, 503 U.S. 318, 117 L.Ed. 2d 581, 112 S.Ct. 1344 (1992), to determine whether an independent contractor is an "employee" within the meaning of the whistleblower statutes.

DEFINITION OF EMPLOYER; OPPORTUNITY OF COMPLAINANT FOR DISCOVERY; NON-EMPLOYER -- MUST BE INTERFERENCE IN EMPLOYMENT
[N/E Digest XIV B 2 and 3]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Respondent Department of Energy filed a motion to be dismissed because it was not Complainant's employer. Complainant's response to the motion was that it should first be permitted full opportunity for discovery, citing Flor v. U.S. Dept. of Energy, 93-TSC-1, slip op. at 9 (Sec'y Dec. 9, 1994). The Board found that Flor, in which summary decision was found not appropriate where the respondent had not answered certain discovery requests that could possibly establish essential elements of the complainant's case, was not controlling because in the instant case, Complainant would have personal knowledge of evidence concerning the identity of her employer and could have provided it in a sworn affidavit. Complainant had not argued that the outstanding discovery would produce any evidence that DOE was her employer.

The Board distinguished the Secretary of Labor's decision in Hill & Ottney v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989), in which it was held that the ERA prohibits employers from discriminating against any employee, not only their own employees. The Board focused on the fact that in Hill & Ottney, Respondent had allegedly interfered with Complainant's employment. In the instant case, there was no allegation that DOE had interfered in Respondent Lockheed Martin's contract or caused Lockheed Martin to take any adverse action against Complainant.

Since no material issue of fact was presented, DOE was entitled to summary decision because it was not Complainant's employer, and Complainant did not allege that DOE interfered in her employment.

DISCOVERY; E-MAIL; REQUEST MUST RELATE TO MATERIAL ISSUE OF FACT WITHIN RELEVANT TIME PERIOD AND MUST NOT BE OVER BROAD; IMPACT OF PENDING MOTION FOR SUMMARY DECISION ON UNRELATED ISSUE
[N/E Digest VII A 2]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), the Board affirmed the ALJ's denial of Complainant's request for production of e-mail and related back-up tapes because most of the discovery requests were designed to help determine the identity of employees having knowledge about a matter concerning which there was no material issue of fact, and which concerned events well outside the 180-day limitations period. For the one request concerning events within the 180-day limitations period, the request was over broad because Complainant was seeking e-mail messages by, to, or about seven employees regardless of whether the messages had anything to do with Complainant's case. In addition, the Board implied that e-mail discovery need not be granted prior to rulings on dispositive motions for summary decision on unrelated issues.

The ALJ had cited several other grounds for denying the e-mail discovery, such as other extensive discovery having already been completed and the time required for searching the e-mail records. The Board noted these grounds, but did not rely on them in affirming the ALJ's denial of the discovery request.

DISCOVERY; APPROPRIATE TO STAY GENERAL DISCOVERY UNTIL DECISION IS MADE ON UNDERLYING JURISDICTIONAL ISSUE
[N/E Digest VII A 2]

In Reid v. Secretary of Labor, No. 95-3648 (6th Cir. Dec. 20, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33984)(case below, 93-CAA-4), the Sixth Circuit affirmed the ALJ's stay on discovery until after the underlying jurisdictional issue of whether Complainant was a covered employee was decided.

See also Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), which the Board implied that the ALJ properly denied discovery on e-mail where, inter alia, there were pending dispositive motions for summary decision on unrelated issues.

DUAL OR MIXED MOTIVE; DISRUPTIVE CONDUCT
[STAA Digest IV D 3]

Even when employees engage in protected activity, employers may legitimately discipline them for insubordination and disruptive behavior. Logan v. United Parcel Service, 96-STA-2 (ARB Dec. 19, 1996) (in dual motive case, Respondent established by preponderance of evidence that it would have discharged Complainant even if not for the protected activity where Complainant was insubordinate with a manager, used a tape recorder on company time, acted inappropriately toward officials when a relief driver arrived, had a history of past disruptions and threats, and Complainant could not explain his behavior).

EQUITABLE TOLLING; COMPLAINT FILED WITH GOVERNMENT AGENCY ASSERTING A SAFETY CONCERN WITHIN FILING PERIOD FOR FILING AN ERA § 211 COMPLAINT DOES NOT EQUITABLY TOLL PERIOD FOR ACTUALLY FILING A § 211 COMPLAINT
[N/E Digest IV C 9]

In Roberts v. Battelle Memorial Institute, 96-ERA-24 (ALJ Dec. 18, 1996), Complainant had filed a series of sex discrimination and equal pay charges with the EEOC and a state agency alleging retaliation in connection with her charge of sex discrimination. In one such complaint, filed with the state agency, Complainant also stated that she was "forced to report directly to a Sub-Contractor rather than Respondent, and this has created a hostile and unsafe environment." The ALJ found that this statement was the first instance in which complaint raised an issue of health or safety, i.e., this was the protected activity under the ERA. After the filing of this complaint, Complainant was suspended without pay and subsequently terminated from employment. Complainant, however, did not raise the issue of retaliation or discrimination related to her ERA protected activity to DOE until under after 180 days from the date of the adverse action. The ALJ found that the filing of the safety complaint with the state agency did not equitably toll the filing period.

GRIEVANCE PROCEEDING MUST RELATE TO SAFETY VIOLATION FOR TESTIMONY GIVEN AT SUCH PROCEEDING TO BE PROTECTED UNDER THE STAA
[STAA Digest V A 2 b and V B 1 c ii]

In Yellow Freight System, Inc. v. Reich, No. 95-4135 (6th Cir. Dec. 16, 1996)(unpublished decision available at 1996 U.S. App. LEXIS 33233)(case below, 89-STA-7), the court rejected the Secretary's determination that a grievance proceeding of a co-worker at which Complainant testified, was one relating to a violation of a commercial motor vehicle safety rule, where the subject of the proceeding was to determine whether the co-worker had or had not provided medical documentation for his absence after being on the sick board for an extended period, rather than the co-worker's fitness for driving. See 49 U.S.C. app. § 2305(a) (Editor's note: this provision has been re-codified at 49 U.S.C. § 31105).

The court interpreted the Secretary's theory in the matter as follows: that drivers who placed themselves on the sick board who are required to provide medical substantiation of their illness may be pressured to return to work before it is safe for them to do so; in their testimony at the grievance proceeding, the co-worker and Complainant challenged the medical substantiation requirement as unreasonable strict; this challenge turned the grievance proceeding into one relating to a possible safety violation.

The court found, inter alia, that there was no evidence that the medical substantiation requirement was challenged at the grievance proceeding, and that "any relationship between the grievance proceeding and a possible safety rule violation was far too attenuated to trigger the protections of § 405(a)."

INVESTIGATORY RESPONSIBILITIES; PERMANENT TRANSFER TO OSHA
[N/E Digest V A]

Effective February 3, 1997, Secretary's Order 6-96 grants the Assistant Secretary for OSHA permanent authority to investigate and resolve allegations of discriminatory actions taken by employers against employees in violation of the nuclear and environmental whistleblower protection provisions

The following is an excerpt from the preamble to Secretary's Order 6-96:

[T]his Order, in conjunction with Secretary's Order 5-96, effects an exchange of particular authorities and responsibilities between the Assistant Secretary for Employment Standards and the Assistant Secretary for Occupational Safety and Health. The exchange was tested in a pilot project for Region VI established by Secretary's Order 6-94 (extended by Secretary's Order 1-96), that granted these Assistant Secretaries limited concurrent authority to enforce certain laws establishing labor standards affecting field sanitation and migrant housing, which had been delegated to the Occupational Safety and Health Administration (OSHA) under Secretary's Order 1-90, and certain environmental and public health-related whistleblower protection laws, which had been delegated to the Employment Standards Administration (ESA) under Secretary's Order 1-93. The pilot project resulted in a determination that the respective agencies would make better use of their program expertise, and, therefore, that the Department of Labor would more effectively and efficiently utilize its resources, by a permanent transfer of specific enforcement activities between the Assistant Secretaries for OSHA and ESA.

Secretary's Order 6-96, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupation Safety and Health, Dec. 27, 1996, 62 Fed. Reg. 111 (Jan. 2, 1997). See also

Secretary's Order 5-96, Delegation of Authorities and Assignment of Responsibilities to the Assistant Secretary for Employment Standards and Other Officials in the Employment Standards Administration, 62 Fed. Reg. 107 (Jan.2, 1997)

PROTECTED ACTIVITY; REFUSAL TO DRIVE AFTER ALTERCATION
[STAA Digest V B 2 a]

In Logan v. United Parcel Service, 96-STA-2 (ARB Dec. 19, 1996), Complainant asked to be relieved of further driving after an altercation with a manager regarding provision of Complainant with uniform pants. The Board agreed with the ALJ that this was protected activity because Complainant asked to be relieved from driving because he was clearly too distressed to drive and Respondent was aware of it. See 49 U.S.C. § 31105(a)(1)(B)(i). The Board noted a distinction from a section 31105(a)(1)(B)(ii) refusal, which has a "reasonableness" component.

SETTLEMENTS; PARTIES MUST REVEAL SIDE AGREEMENTS OR CERTIFY THAT SUCH AN AGREEMENT DOES NOT EXIST
[N/E Digest XVII G 6]

In the December 1996 newsletter, the decision in Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB Dec. 3, 1996) was casenoted. The Board in Biddy, held that

In the future, the Board will require all parties requesting approval of settlements of cases arising under the employee protection provisions of the environmental protection statutes to provide us with the settlement documentation for any other claims arising from the same factual circumstances forming the basis of the federal claim, or to certify that no other such settlement agreements were entered into between the parties.

Slip op. at 3.

Pursuant to Biddy, both the Board will order parties provide the required information before they will act on approval of settlements. See, e.g., Backen v. Entergy Operations, Inc., 96-ERA-18 (ARB Dec. 12, 1996)(order).

[Editor's note: ALJs probably should order the parties to provide the required information before transmitting a recommended decision to the Board. See, e.g., Comfort v. Raytheon Engineers and Constructors, Inc., 95-ERA-51 (ALJ Dec. 12, 1996); DeBose v. North Carolina Power & Light Co., 92-ERA-14 (ALJ Jan. 10, 1997) (order of Chief ALJ).]

SETTLEMENTS; ACTUAL AMOUNT COMPLAINANT WILL RECEIVE MUST BE SPECIFIED
[N/E Digest XVII G 1]

In a series of decisions, the Board has held that the actual amount the complainant will receive in settlement of a complaint must be specified in order for the Board to determine whether the settlement agreement is fair, adequate and reasonable. See OALJ Memorandum: Disclosure of Dollar Amount of Payments and Attorneys' Fees; Possible Side Agreements. Thus, if a settlement agreement reveals a total payment to Complainant, but does not specify the amount of attorney's fees to be paid out of that amount, the Board will order provision of this information by either a joint response, or from Complainant's counsel, prior to acting on approval of the settlement. See, e.g., Backen v. Entergy Operations, Inc., 96-ERA-18 (ARB Dec. 12, 1996)(order).

[Editor's note: ALJs probably should order the parties to provide the required information before transmitting a recommended decision to the Board. See, e.g., DeBose v. North Carolina Power & Light Co., 92-ERA-14 (ALJ Jan. 10, 1997) (order of Chief ALJ).]

SETTLEMENT PROVISION FOUND VOID BY NRC DOES NOT GIVE DOL JURISDICTION TO CONDUCT ADDITIONAL ADMINISTRATIVE PROCEEDINGS
[N/E Digest XVII G 4]

In Thompson v. Houston Light & Power Co., 96-ERA-34 and 38 (ALJ Nov. 27, 1996), the parties had executed a settlement agreement relating to Case Nos. 93-ERA-2 and 95-ERA-48 on October 25, 1995, which was ultimately approved by the Secretary of Labor as a fair, adequate and reasonable settlement of Complainant's ERA § 211 complaints. The settlement included a provision that Respondents agreed to warrant that Complainant's access to a certain facility had not been suspended, revoked or denied; the settlement also included a release for all claims or causes of action arising out of or accruing prior to the date of the settlement was signed. Complainant later filed Case No. 96-ERA-34, alleging that Respondent had discriminated and harassed him when it notified the NRC and Respondent's Access Program Division that Complainant was a potential threat to the safety of the subject facility, and when Respondent suspended Complainant's security access on October 5, 1995.

On cross motions for summary decision, the ALJ held that Case No. 96-ERA-34 should be dismissed because it was barred by the release contained in the October 25, 1995 settlement agreement. Complainant argued that the settlement was subject to legal challenge because the NRC had notified the parties that the warrant about security access was void on the grounds of public policy and federal law -- that a failure to reveal the suspension of unescorted access would be a violation of NRC regulations. Alternatively, Complainant argued that a settlement did not exist in regard to terms that were illegal. The ALJ, however, found no authority to allow Complainant's challenge to the settlement agreement in a DOL proceeding. The ALJ, noted that in Williams v. Public Service Elec. & Gas Co., 94-ERA-2, n.2 (Sec'y Apr. 10, 1995), the Secretary of Labor had acknowledged the U.S. Supreme Court holding in Kokkonen v. Guardian Life Ins. Co., 128 L.Ed. 2d 391 (1994). The ALJ indicated, that consistent with Kokkonen, without a retention of jurisdiction clause, the DOL has no authority to conduct administrative proceedings relating to enforcement of the settlement.

Still later, Complainant filed Case No. 96-ERA-38 alleging that Respondents breached certain provisions of the settlement agreement including continued payment of medical benefits and the warrant about Complainant's security access. The ALJ noted that he viewed Complainant's Case No. 96-ERA-38 complaint as seeking redress not for mere breach of the settlement agreement, but for violation of the ERA by virtue of breaching the agreement. Without this distinction, DOL would have no authority to conduct administrative proceedings in the matter.

STAY OF FINAL ORDER; FACTORS
[STAA Digest II L]

The Administrative Review Board applied the factors stated in Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958), to determine whether to stay its Final Decision and Order in the matter. Ass't Sec'y & Bigham v. Guaranteed Overnight Delivery, 95-STA-37 (ARB Dec. 12, 1996). Those factors are:

1) Has the [party seeking a stay] made a strong showing that it is likely to prevail on the merits of its appeal?

* * * *

2) Has the petitioner show that without such relief, it will be irreparably injured? The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.

* * * *

3) Would the issuance of a stay substantially harm other parties interested in the proceeding?

* * * *

4) Where lies the public interest? In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interests of private litigants must give way to the realization of public purposes.

Slip op. at 2, quoting Petroleum Jobbers, 259 F.2d at 925. The Board, weighing these factors, denied Respondent's request for a stay.

SUBPOENAS; RECEIPT OF HEARSAY DOCUMENT WHERE ATTENDANCE OF WITNESS COULD NOT BE COMPELLED BECAUSE OF LACK OF SUBPOENA POWER
[N/E Digest VII B 1 and VII D 2]

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ALJ Nov. 25, 1996), the ALJ received a hearsay document submitted by Complainant to establish certain matters where Complainant could not compel the attendance of the declarant by subpoena. The ALJ, however, cautioned Complainant that the hearsay document, without corroborating evidence, lacked evidentiary value.

TIMELINESS OF COMPLAINT; DISCOVERY OF ALLEGED VIOLATION DURING DISCOVERY
[N/E Digest III A 5]

In Freels v. Lockheed Martin Energy Systems, Inc., 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), the Board found that because Complainant did not learn about allegedly improper use of medical information by Respondent until she took depositions, and she filed a complaint within thirty days of the depositions, the complaint was timely as to this allegation.