WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
February 23,
1999
NOTICE: This newsletter was created solely to assist the staff of the Office of
Administrative Law Judges in keeping up to date on whistleblower law. This newsletter in no
way constitutes the official opinion of the Office of Administrative Law Judges or the
Department of Labor on any subject. The newsletter should, under no circumstances, substitute
for a party's own research into the statutory, regulatory, and case law authorities on any subject
referred to therein. It is intended simply as a research tool, and is not intended as final legal
authority and should not be cited or relied upon as such.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[Nuclear and Environmental Digest III A]
TIMELINESS, GENERALLY
See generallyFoley v. Boston Edison Co., 1997-ERA-56 (ALJ
Dec. 2, 1998), for a recommended decision that provides a thorough discussion of time
limitations for filing ERA complaints, the continuing violation theory, whether an oral complaint
can be considered properly filed, and equitable tolling.
[Nuclear and Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; NON-RESPONSE OF EMPLOYER TO
COMPLAINANT'S LETTER
In a Recommended Order Granting Motion to Dismiss in Flynn v. OK Industries,
Inc., 1999-WPC-1 (ALJ Jan. 13, 1999), Respondent had sent a letter to Complainant
changing his status to medical leave without pay, and informing Complainant that its decision
would not be reviewed until Complainant supplied certain medical records. Subsequently,
Complainant sent a letter to Respondent requesting accrued vacation pay and certain other
information. Respondent did not respond to Complainant's letter. Complainant's complaint
with DOL was untimely if the date of the alleged last adverse action was calculated from the date
of Respondent's letter, but timely if calculated from the date of Complainant's letter to
Respondent. The ALJ concluded that Respondent's non-response could not be construed as a
separate act of discrimination, citing Hadden v. Georgia Power Co., 1989-ERA-21
(Sec'y Feb. 9, 1994). The ALJ wrote:
I am also persuaded by Respondent's argument regarding the dangers of
allowing a claimant to simply "reset the clock" on his own initiative. Under
Complainant's interpretation of the law, an employee may revive an otherwise
time-barred claim at any time by his own act, e.g., mailing a letter. If this is
allowed, the only way an employer in a similar situation could avoid committing a
possibly discriminatory act is to give in; if the employer does not, or simply ignores the
letter, then that decision would be the subject of a discrimination claim. (See
Respondent's Brief, p.3-4). This can not be the intent of the law.
[Nuclear and Environmental Digest IV C 5]
TIMELINESS OF REQUEST FOR HEARING; EQUITABLE TOLLING NOT
AVAILABLE WHERE LACK OF DUE DILIGENCE
In Howlett v. Northeast Utilities, 1999-ERA-1 (ALJ Dec. 28, 1998),
Complainant and his attorney were both sent copies of a Letter of Determination by OSHA via
certified mail, and both received the letter shortly thereafter. Neither Complainant nor his
attorney timely exercised the right to appeal. Complainant's explanation was that he that
understood his attorney would respond appropriately to any correspondence. Complainant's
attorney, however, did not appeal because one of his employees misfiled the certified letter. The
ALJ held in his recommended decision that "[w]hile this is regretful, it is not sufficient
grounds to invoke the rarely exercised concept of equitable tolling. As the Second Circuit has
opined, lack of due diligence on the part of a complainant or the complainant's attorney is
insufficient to justify application of equitable tolling. South v. Saab Cars USA, Inc., 28
F.3d 9 (2d Cir. 1994) (dismissing the complaint where plaintiff's counsel mistakenly relied on
state procedure for filing of a federal complaint)."
[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; RELATIONSHIP TO FOIA
In Rimar v. U.S. Environmental Protection Agency, 1998-SDW-2 (ALJ
Feb. 16, 1998), Complainant sought reconsideration of a protective order that imposed
restrictions on Complainant's use of certain material supplied in response to discovery requests,
and required Complainant's return of some materials at the conclusion of the litigation.
Complainant's motion was based on a number of grounds.
The ALJ found that Complainant had misinterpreted the impact of the protective order: it
only required that Complainant maintain, from the date of the protective order, the
confidentiality of documents he obtained in response to certain discovery demands: it did not
prohibit disclosures that might have occurred before the order was issued or require Complainant
to maintain the confidentiality of identical documents that have been or may be received through
other means, such as litigation under the Privacy Act or FOIA
Complainant argued that he had a "clear-cut" Privacy Act and FOIA
entitlement to the materials within the scope of the protective order. The ALJ's order contains a
discussion of the difference between information gathered in response to discovery and
information obtained through the Privacy Act and FOIA. The ALJ observed that Complainant
was granted access through discovery to certain categories of information because it was deemed
relevant to the issues in litigation, even though it appeared that at least some of that information
would not be available under either FOIA or the Privacy Act (despite Complainant's assertions to
the contrary). Once the litigation ended, the need for the information vanished. The ALJ noted
that Privacy Act and FOIA disputes were beyond the jurisdiction of an ALJ to decide. Finally,
the ALJ rejected Complainant's argument that public policy required reconsideration of the
protective order. The ALJ agreed that "in circumstances where materials obtained during
the discovery process demonstrate persecution of whistleblowers or other illegal conduct, public
policy' would probably preclude continuation of a protective order prohibiting disclosure of such
materials." However, his careful review of the materials lead to the conclusion that such
circumstances did not exist in the instant case.
[Nuclear and Environmental Digest VII A 5]
PROTECTIVE ORDER; DISCIPLINARY RECORDS OF OTHER EMPLOYEES;
COMPLAINANT'S PRACTICE OF POSTING DEPOSITIONS ON THE INTERNET
In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 1, 1999),
Complainant sought an order compelling Respondent to answer a request for production of
documents regarding disciplinary actions taken against any employees for violation of
information release regulations. Complainant agreed in the motion to enter into a protective
order to assure the privacy interests of the subject employees. Respondent opposed the motion
based on its employees general right and expectation of privacy in their employment matters,
including disciplinary actions.
The ALJ found that the documents sought were relevant to the subject matter of the
litigation, outweighed the employees' right to privacy, and were therefore discoverable (the
ALJ's order includes a concise discussion of scope of discovery in discrimination cases).
Nonetheless, the ALJ held that a protective measure was appropriate because the information
sought was sensitive and the kind that the employees would expect to be held in confidence.
Therefore the ALJ ordered the parties to enter into a confidentiality agreement, and directed that
the disclosure be limited to Complainant's counsel and experts retained in the case, to the extent
necessary for trial preparation, and that the files were to be kept confidential. The ALJ directed
that
"Complainant is to be prohibited from using these files for any purpose other than this
action and copies of any files produced are to be maintained in counsel's custody."
Respondent also sought a protective order requiring that Complainant keep confidential
the names and other identifying information of Respondent's employees that Complainant seeks
to depose. Respondent sought such an order based on the assertion that Complainant had
"plastered this case on the Internet, including loading the complete deposition testimony of
different Wackenhut employees." Respondent further asserted that the sensitive nature of
the information contained in the depositions, such as disciplinary actions taken against named
employees, should be kept confidential.
The ALJ noted that the Secretary of Labor has held that litigants have a general First
Amendment freedom to disseminate freely information gained through discovery, absent a valid
court order. The ALJ also noted, however, that the OALJ rules of practice provide an
opportunity for a party ordered to produce confidential documents to move for a protective order.
See 29 C.F.R. § 18.15. Under the circumstances, the ALJ found that a protective
order should be issued to shield employees of Respondent who have been subject to disciplinary
actions from further embarrassment.
In a subsequent order, the ALJ prescribed the conditions and precautions for the protective
order because the parties were unable to agree on the terms of such an order. Graf v.
Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 18, 1999). Among other
conditions, the ALJ ordered that confidential documents be reviewed, received, and held
confidential by counsel for Complainant and used only for purposes of the instant litigation.
Complainant's counsel was to maintain a list of all persons to whom a disclosure was made and
copies of confidentiality agreements signed by them (e.g., Complainant, co-counsel,
support staff, party experts).
[Nuclear and Environmental Digest VII B 5]
QUASHING OF SUBPOENAS; STRIKING OF WITNESS WHO REFUSES TO BE
DEPOSED
In Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Jan. 28,
1999)(order granting motion to quash subpoena), a person listed on Complainant's list of
intended witnesses moved to quash a subpoena served on him by Respondent. That person was
not a party to the action nor an employee of Respondent. The ALJ granted the motion to quash,
citing 29 C.F.R. § 18.24 and Malpass v. General Elec. Co., 1994 WL 897244 at
*9, 85-ERA-38/39 (Sec'y Mar. 1, 1994). The ALJ suggested that the movant consider voluntary
participation in a deposition.
In a simultaneous order, the ALJ granted Respondent's motion to strike the same witness
from Complainant's witness list, finding that it would unfairly prejudice Respondent if
Complainant was allowed to call that witness at the hearing without first allowing Respondent to
depose the witness. Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ
Jan. 28, 1999) (order granting motion to strike witness). In a subsequent order, however, the
ALJ rescinded this order based on Complainant's offer of proof that established to the ALJ's
satisfaction that at least some of this witness' testimony would be an integral part of
Complainant's case and should be allowed at the hearing. Graf v. Wackenhut Services
LLC, 1998-ERA-37 (ALJ Feb. 18, 1999).
[Nuclear and Environmental Digest VII C 1]
SUMMARY JUDGMENT; COMPLAINT RAISED SUFFICIENT INFORMATION TO
WARRANT FURTHER INQUIRY
In Moore v. U.S. Dept. of Energy, 1998-CAA-16 (ALJ Dec. 24, 1998),
the ALJ declined to grant summary judgment against Complainant based on Respondent's
contention that Complainant had failed to allege a prima facie case, where, although
Complainant's complaint was lacking in specific details, it stated enough to merit inquiry.
[Nuclear and Environmental Digest VIII A 5]
RECUSAL; BOTH PARTIES BELIEVE ALJ BIASED
In Fanning v. Ramsey Schilling Consulting Group, 1998-CAA-2 (ALJ
Jan. 21, 1999), both Complainant and Respondent accused the ALJ of being biased toward the
other party and requested that he recuse himself. The ALJ granted the requests, finding that
"it is evident that the animosity between the parties is so great that my attempts to be
impartial have been misinterpreted by each party as bias toward the other party."
[Nuclear and Environmental Digest VIII A 8]
COMPLAINT OF CONTINUING HARASSMENT; ALJ'S DISCRETION IN REGARD
TO WHETHER TO REOPEN THE RECORD AND RECONVENE THE HEARING
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 6-7
(ARB Feb. 9, 1999), the ARB denied Complainant's request that the Board consider newly
tendered evidence of continuing harassment. The ALJ had previously denied Complainant's
motion to reopen the record and reconvene the hearing on the ground that granting the motion
would unduly delay a final disposition, and that Complainant could file a new complaint with
OSHA. The ARB held that the ALJ's denial of the motion to reopen the record and reconvene
the hearing was sound because (1) "an ALJ has control of his docket and reasonably may
decide that it is more expeditious to handle new allegations in a separate complaint", and
(2) Complainant "has recourse to a separate retaliation complaint under which he may
receive a complete remedy." The ARB observed that the CAA and similar statutes
explicitly forbid acts of retaliation against an employee because the employee has filed a
complaint under the whistleblower provision. 42 U.S.C. §7622(a)(1). Thus, the ARB
declined to consider Complainant's newly tendered documentation.
[Nuclear and Environmental Digest VIII B 2 b]
EVIDENCE SUBMITTED WITH BRIEF BEFORE ARB
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 5
(ARB Feb. 9, 1999), Respondent supplied documents attached to its opening brief before the
ARB to support its argument that Complainant had a prior tardiness problem. The ARB
observed that because those documents were not presented before the ALJ, they violated the rule
that the record is closed at the conclusion of the hearing, and additional evidence shall not be
accepted, absent a showing that it is new and material and was not readily available prior to the
close of the hearing. 18 C.F.R. §18.54(a) and (c) (1998). Respondent asserted that the
rule was not violated because it lacked notice, prior to the hearing, that Complainant was
challenging the tardiness disciplinary notice. The ARB found that Complainant's complaint did
not mention the issue, but that the ALJ cured the notice problem by inviting Respondent to
submit copies of Fabricius' time cards after the hearing and by asking both parties to address the
tardiness issue in their post hearing briefs. The ARB found that the request for post-hearing
evidence and argument logically extended to all documents in the Respondent's possession
concerning Complainant's tardiness, and declined to consider the additional evidence.
[Nuclear & Environmental Digest IX D 3]
NEW EVIDENCE
In Madonia v. Dominick's Finer Foods, Inc., 1998-STA-2 (ARB Jan.
29, 1999), the Board remanded the case to the ALJ for receipt into evidence, of a letter that
Respondent obtained after the issuance of the ALJ's recommended decision as the result of
discovery in a separate lawsuit under the ADA. The letter was relevant and material, see
29 C.F.R. § 18.54(c), because it tended to bolster Respondent's credibility concerning a
crucial date that related to whether Respondent's discharge of Complainant was motivated by
protected activity or by Complainant's failure to abide by a condition imposed on his continued
employment following an altercation.
In Foley v. Boston Edison Co., 1997-ERA-56 (ARB Feb. 2, 1999), in
contrast, the ARB denied a motion to reopen where Complainant did not yet have possession of
any additional documents, had not shown that the information would be relevant, had not shown
that the information was not previously available at trial, and it appeared that Complainant was
"merely ... hoping or expecting that these inquiries by government agencies [studies or
investigations by the NRC or OIG] might generate information useful to his case."
[Nuclear and Environmental Digest X D]
DIRECT EVIDENCE OF RETALIATION; SUPERVISOR'S DISAPPROVAL OF
EMPLOYEE'S COMPLAINING TO GOVERNMENT AGENCIES
A supervisor's disapproval of an employee's complaining to a government agency indicates
discriminatory intent. See Blake v. Hatfield Elec. Co., 1987-ERA-4, slip op. at 5 (Sec'y
Jan. 22, 1992) (supervisor's comment that the complainant used the NRC as a threat found to
"virtually amount[] to direct evidence of discrimination). The supervisor who issued a
disciplinary notice for tardiness opined at the hearing that Complainant was not justified in
making a complaint to OSHA -- that "I feel that [Complainant] is using OSHA and that the
warning was merited." The ARB found that this statement was very strong evidence of
discriminatory intent. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 5-6 (ARB Feb. 9, 1999).
[Nuclear and Environmental Digest XI B 2 b ix]
CHAIN OF COMMAND
Under the whistleblower protection provisions of the ERA and similar laws, an employee
may not be disciplined for failing to observe an established chain of command when making
safety complaints. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 4 (ARB Feb. 9, 1999).
[Nuclear and Environmental Digest XI C 2 a]
PRETEXT
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 n.10
(ARB Feb. 9, 1999), Respondent's purported reason for issuing a warning notice to Complainant
for leaving the work site was found to be pretext where Respondent had no formally documented
policy about leaving a work site to report an environmental hazard; even if a policy existed it was
not applied uniformly (co-worker who also left the site was not sent a warning notice); and, it
was unclear that such a policy was really violated (Complainant had stopped at the Town offices
to attempt to obtain information about possible asbestos at the work site; he did this on his way
back to the garage at the end of the work day).
[Nuclear and Environmental Digest XI E 14]
SHIFTING EXPLANATION MAY INDICATE PRETEXT
A shifting explanation for the adverse action often is an indication that the asserted
legitimate reasons are pretext. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 4 n.10 (ARB Feb. 9, 1999).
[Nuclear and Environmental Digest XII C 4]
PRIMA FACIE CASE; OCCUPATIONAL EXPOSURE NOT RELATED TO NUCLEAR
SAFETY
In Cox. v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ALJ
Feb. 8, 1999), the ALJ found that Complainants failed to establish that they engaged in protected
activity under the ERA, where their case was based on allegations that they were the victims of
cyanide intoxication related to an occupational exposure. The ALJ found that such exposure was
not related to nuclear safety and therefore not protected under the ERA. The ALJ alternatively
found that, even if the allegations were determined to fall under the ERA, Complainants' belief
that they were harmed by an occupational source of cyanide was unreasonable. The ALJ found
overwhelming evidence that there was no occupational source for cyanide exposure, and
therefore it was not objectively reasonable for Complainants to perceive that their illnesses were
caused by occupational exposure.
[Nuclear and Environmental Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; OFFER OF RE-EMPLOYMENT DURING
SETTLEMENT NEGOTIATION THAT INCLUDED DISCRIMINATORY TERM
In Smyth v. Johnson Controls World, Inc., 1998-ERA-23 (ALJ Feb. 5,
1999), the ALJ found in his recommended decision that Respondent's presentation to
Complainant during a settlement negotiation of an ERA whistleblower complaint, of a letter that
significantly restricted the departments within which the Complainant could possibly be re-hired,
and impeded his ability to fairly compete for any position for which he was qualified, was itself
an act of discrimination under the ERA.
[Nuclear and Environmental Digest XIV B 1]
DERIVATIVE LIABILITY
In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8,
1998), the ALJ had found in a prior recommended decision, that the corporate connection
between Westinghouse Hanford Company and Westinghouse Savannah River Company was
close enough to attribute the actions of one corporation to the other for purposes of
whistleblower protection. The ARB had found that the ALJ's conclusions in this respect were
fully supported by the record before the ALJ, but remanded for additional fact-finding and
consideration of appropriate relief.
On remand, Respondent presented testimony tending to show that the corporations were
separate and distinct, but the ALJ found the declarations lacking in credibility, having been made
by managers or former managers for Respondent who engaged in retaliatory actions, and many
of whom harbored personal antagonism toward Complainant. The ALJ also found that the
Board's holding on the question of WSRC responsibility now constituted the law of the case.
The ALJ also addressed Respondent's citation of United States v. Bestfoods, 118
S.Ct. 1876 (1998), a CERCLA case not involving the employee protection provision, in which
the Supreme Court held that only when the corporate veil may be pierced as a matter of corporate
law can a parent corporation be charged with derivative liability. The ALJ indicated that if
Bestfoods applies, Complainant probably could not show that derivative liability applies,
but concluded that because of a concession by Complainant in his brief on remand, and without
further instructions from the Board, he would not attempt to make any findings pursuant to
Bestfoods.
[Nuclear and Environmental Digest XVI A 2]
REMEDIES; CLAIMS FOR PREMATURE DEATH, LOSS OF LIFE
In Ricketts v. Northeast Utilities Corp., 1998-ERA-30 (ALJ Jan. 4,
1999), Complainant (the employee's estate) argued that adverse treatment of the employee by
Respondents was a causative factor of his fatal heart attack, and sought compensatory damages
for loss of life (e.g., lost wages for remaining work expectancy, lost pension, lost
employee benefits) and damages for premature death. The ALJ held that such damages were not
compensable under the ERA employee protection provision; that the estate was entitled to no
more and no less than the employee had he pursed the action during his lifetime.
[Nuclear and Environmental Digest XVI A 2]
REMEDIES; MUST BE CONSEQUENCES OF DISCRIMINATION, NOT EXPOSURE
TO HAZARD
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 @ 6-7
(ARB Feb. 9, 1999), the ARB affirmed the ALJ's recommended finding that Respondent
violated the employee protection provision of the CAA when it disciplined Complainant for
leaving the work site without permission, and tardiness, because it was pretext for the real motive
of retaliation for Complainant's seeking of information about asbestos on the work site.
Complainant had made inquiries after debris and dust fell on him and a co-worker during a
demolition, and Complainant suspected that the material contained asbestos. Later testing
confirmed that asbestos was present.
The ARB affirmed the ALJ's order that Respondent repay Complainant for the cost of
obtaining medical treatment and medications for his emotional upset caused by Respondent's
wrongful conduct, clarifying that Respondent's liability is limited to the medical costs paid by
Complainant himself. The ARB, however, rejected the ALJ's recommended order that
Respondent pay for medical treatment for Complainant's exposure to asbestos and the cost of his
contaminated clothing, because such costs were not a consequence of Respondent's
discrimination.
[Nuclear and Environmental Digest XVI E 3 a]
ATTORNEY'S FEES; REQUIREMENT OF EVIDENCE OF REASONABLENESS OF
HOURLY RATE
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 (ARB
Feb. 9, 1999), the ARB noted that it has held that a "complainant's attorney fee petition
must include adequate evidence concerning a reasonable hourly fee for the type of work the
attorney performed and consistent [with] practice in the local geographic area,' as well as records
identifying the date, time, and duration necessary to accomplish each specific activity, and all
claimed costs," citing Van Der Meer v. Western Kentucky Univ., 1995-ERA-38,
slip op. at 10 (ARB Apr. 20, 1998).
Because Complainant's counsel's fee petitions did not contain "evidence, such as an
affidavit of counsel, indicating that the hourly rate charged by counsel was reasonable for this
type of case or that the hourly rate was consistent with practice in the Boston area, where counsel
is located, " the ARB remanded the case to the ALJ for a supplemental recommended
decision on the reasonableness of the hourly attorney rates requested.
[Editor's note: The ARB seems to be requiring evidence of reasonableness of the
hourly rate even if the fee petition is not opposed. See Fabricius v. Town of Braintree/Park
Dept., 97-CAA-14 @ 21 (ALJ Sept. 8, 1997), where the ALJ observed that
"Respondent has failed to submit any objection to the fees and expenses requested."
Compare Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Feb. 2, 1999)
(attorney fee petition, accompanied by affidavit, approved where Respondent did not object) ].
[Nuclear and Environmental Digest XVI F]
EXEMPLARY DAMAGES
In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8,
1998), the ALJ recommended exemplary damages of $12,500, based on a comparison with other
cases.
[Nuclear and Environmental Digest XXI B]
ISSUE PRECLUSION; SUMMARY JUDGMENT
In Ruud v. Westinghouse Hanford Co., 1988-ERA-33 (ALJ Dec. 8,
1998), Respondent asserted that the ALJ should apply issue preclusion because a Washington
State Superior Court granted Respondent's motion for summary judgment and dismissed
Complainant's claims (one of which was wrongful discharge) before that court. The ALJ found
that issue preclusion did not apply because the Superior Court judge gave no explanation for the
grounds or reasoning underlying his decision and made no findings of fact. The ALJ also found
that issue preclusion did not apply because it was not readily apparent that the standards of proof
were the same for the state claims and the federal claims before the ALJ.