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

March 7, 1997



This newsletter covers materials that became available during the period from January 15 to March 7, 1997. There was no separate February newsletter.

Editor's Note: Beginning with this newsletter, the casenotes will be organized by Digest number rather than alphabetically. This new organization should make it easier to update printed versions of the Digests.


NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER DECISIONS

[N/E Digest I A 2]
NRC NOTICE ON "SAFETY-CONSCIOUS WORK ENVIRONMENT"

On February 26, 1997, the NRC published in the Federal Register a notice requesting public comment on strategies to address the need for its licensees to establish and maintain a safety-conscious work environment. Request for public comment, Safety-Conscious Work Environment, 62 Fed. Reg. 8785 (1997). The notice proposes, inter alia, that

(b) When circumstances occur that could adversely impact the safety-conscious environment, or when conditions arise that indicate the potential emergence of an adverse trend in the safety-conscious work environment, the licensee shall take action as required to ensure that the safety-conscious environment is preserved. Indicators that may be considered as possible evidence of an emerging adverse trend include, but are not limited to:

(1) Adverse findings by the Department of Labor or the NRC Office of Investigation (OI) concluding that discrimination has occurred against employees for engaging in protected activity, including a finding of the existence of a hostile work environment;

* * *

[N/E Digest II B 2]
JURISDICTION; LABOR-MANAGEMENT DISPUTE

Where Complainant acknowledged that he did not engage in protected activity under the ERA, but maintained that his removal was discriminatory based on his job classification schedule, the Board affirmed the ALJ's recommended decision awarding summary decision, finding that the ALJ correctly found that Complainant was engaged in a labor-management dispute with Respondent, and not an environmental safety dispute. Fugate v. Tennessee Valley Authority, 95-ERA-50 (ARB Dec. 12, 1996).

[N/E Digest II B 2]
JURISDICTION; NATURE OF COMPLAINANT'S COMPLAINTS

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), Complainant was assigned to a project in which he and a partner terminated electrical cables; one electrician performed the termination and the other electrician was to verify; each electrician then was required to sign a document upon completion of the task. Complainant complained to a supervisor that his partner was taping cable wire in violation of quality control procedures. The Board also found that Complainant complained about falsification of records.

Respondent contended that Complainant's complaints did not involve a potential violation of the ERA or the Atomic Energy Act or an issue related to nuclear safety. See 42 U.S.C. § 5851(a)(1); DeCresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993).

The Board distinguished DeCresci, in which the complainant's concerns were about welding procedures in the construction of sonarspheres for nuclear submarines and the Secretary had found that these concerns were not related in any way to activities regulated under the ERA and nuclear or radiation safety, and therefore were not the type of environmental concerns that the ERA whistleblower provision was intended to reach. In contrast, the Board found that the instant case involved "an allegation of retaliation based on complaints about improprieties related to the performance of electrical work within an operating nuclear power plant, and comes within the purview of the ERA's whistleblower provision." Slip op. at 7.

The Board also noted that the fact that the NRC investigated and concluded that the particular cable and work packages at issue were not safety-related was not dispositive because Complainant had a reasonable belief that his employer was violating the ERA's requirements.

[N/E Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY

Where each of the alleged acts creating a hostile working environment did not involve the same type of discrimination and was an isolated employment decision lacking a common subject matter, the Board in Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997), held that Complainant failed to establish a continuing course of harassment to render complaints filed more than 30 days after the allegedly harassing incidents timely.

[N/E Digest VII A 3]
ALJ'S DISCOVERY ORDERS ARE NOT ENFORCEABLE IN FEDERAL DISTRICT COURT

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ARB Jan. 7, 1997), the Board interpreted the Secretary's decision in Malpass and Lewis v. General Electric Co., 85-ERA-38 and 39, slip op at 21-22 (Sec'y Mar. 1, 1994), as having held that only orders for relief under 42 U.S.C. § 5851(b)(2) are enforceable in federal District Courts under 42 U.S.C. § 5851(d), but an ALJ's orders relating to discovery are not.

The Board stated that "the only hearings required by the ERA to be made on the record are those upon which an order for relief to the complainant may be based. Any collateral orders are not required by statute to be made on the record after notice and opportunity for hearing." Slip op. at 3.

[N/E Digest VII D 2]
EVIDENCE; DOCUMENTS TAKEN BY COMPLAINANT WHILE REPORTING THE EPA

In Takvorian v. Saybolt, Inc., 96-CAA-11 (ALJ Mar. 3, 1997), Respondent objected to receipt of a series of Complainant's exhibits, many of which consisted of documents marked as internal corporate documents of Respondent, on the theory that Complainant was an agent of the EPA at the time that those documents were either photocopied or taken by Complainant, and therefore they were "warrantless seizures" in violation of the Fourth Amendment. The ALJ found that Complainant was not an agent of the EPA because he was merely communicating with the EPA during this period, and because EPA did not appear to have authorized the taking of those documents. Further, even assuming arguendo that Complainant was an EPA agent, the ALJ found that he would receive the documents into evidence because a DOL environmental whistleblower suit is not brought by the government but a private individual.

[N/E Digest IX M 2]
ATTORNEY CONDUCT; ORDER BARRING FUTURE APPEARANCES

In Johnson v. Oak Ridge Operations Office, 95-CAA-20, 21 and 22 (ALJ Feb. 4, 1997), the presiding ALJ ordered Complainant's attorney permanently barred from appearing before her in this or any other matter. This order was preceded by an order to show cause issued pursuant to 29 C.F.R. §§ 18.29, 18.34 and 18.38, and was based on the ALJ's finding of "a continuing pattern of willful misconduct, including the making of prohibited ex parte communications, engaging in disruptive actions, violating [the ALJ's] orders, and failing to abide by [the OALJ's] rules of practice." See Johnson v. Oak Ridge Operations Office, 95-CAA-20, 21 and 22 (ALJ Feb. 4, 1997)

[N/E Digest IX M 2]
ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEY DISCIPLINARY PROCEEDING

In Rex v. Ebasco Services, Inc., 87-ERA-6 and 40 (ARB Jan. 7, 1997), the Board held that attorney's fees are not available under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (1988), for the defense of an attorney disciplinary proceeding under 29 C.F.R. § 18.34(g)(3), arising out of alleged improper conduct by the attorneys for the Complainant in an ERA whistleblower case.

[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE; SUDDEN, UNEXPLAINED DECLINE IN PERFORMANCE EVALUATION; SHIFTING EXPLANATIONS

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), the Board found that Complainant was laid-off due to contempt for Complainant's protected activity based on a supervisor's various, unsupported explanations and unexplained downgrade in Complainant's performance rating; the temporal proximity between the supervisor's knowledge of Complainant's complaints and the layoff; Complainant's value to Respondent as a certified electrician with unescorted access; the accuracy of Complainant's complaints and evidence of an attempted coverup; animus exhibited by several supervisors; and the amount of work affected by the alleged violations. This evidence outweighed factors such as the fact that three of seven electricians laid off were as qualified as Complainant (the Board pointed out that the record did not show whether those three had unescorted access clearance); the fact that Complainant was rehired twice after the lay-off (the Board pointed out that the rehiring was only over strong protected by several supervisors); and the fact that Complainant and another worker had earlier acknowledged that the layoff was not retaliatory (the Board pointed out that plausible explanations had been supplied for those earlier statements and that circumstantial evidence can prove retaliatory motive even it a witness testified that such a motive was not perceived).

[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE MAY PROVE RETALIATORY PURPOSE EVEN WHEN COMPLAINANT DID NOT PERCEIVE SUCH A MOTIVE

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), Respondent pointed out as evidence of non-retaliatory motives that Complainant and a co-worker had both acknowledged earlier that Complainant's layoff was not retaliatory. The Board, however, considered other circumstantial evidence and Complainant's and the co-worker's plausible explanations of their earlier statements in finding that the layoff was motivated by contempt for Complainant's protected activity. The Board stated that "the presence or absence of retaliatory motive is provable by circumstantial evidence even if a witness testifies that he did not perceive such a motive." Slip op. at 10 (citations omitted).

[N/E Digest X E]
CREDIBILITY DETERMINATIONS; FACT THAT RESPONDENT COMMITTED VIOLATIONS EXACTLY AS ALLEGED BY COMPLAINANT

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), the Board found that the fact that Respondent did commit a falsification of records exactly as alleged by Complainant, and then attempted to conceal this wrongdoing from the licensee, undermined the credibility of several of Respondent's witnesses, and lent more credence to Complainant's account.

[N/E Digest XI A 2 b ii]
TEMPORAL PROXIMITY TOO DISTANT

The passage of three years from the time of Complainant's protected activity and alleged adverse action, with evidence of lack of animus on the part of Respondents after the protected activity (Complainant had been hired on five different occasions subsequent to the protected activity), convinced the Board in Bonanno v. Stone & Webster Engineering Corp., 95-ERA-54 and 96-ERA-7 (ARB Dec. 12, 1996), that there was no causal connection between the protected activity and the alleged adverse actions. See Shusterman v. EBASCO Services, Inc., 87-ERA-27, slip op. at 8-9 (Sec'y Jan. 6, 1992), aff'd mem., Shusterman v. Secretary of Labor, No. 92-4029 (2d Cir. Sept. 24, 1992) (four-year interval, without credible evidence to contrary, establishes absence of causal connection between protected activity and adverse action).

[N/E Digest XI B 2 c]
LEGITIMATE BUSINESS REASON FOR ADVERSE ACTION; COMPLAINANT'S MANNER OF RAISING HEALTH AND SAFETY COMPLAINTS

In Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997), Complainant became involved in an internal EPA personnel matter during a period on which he was "on-loan" to the Commonwealth of Kentucky as a coordinator on environmental studies relating to several geographic areas of the state. Complainant presented a wrong impression that Kentucky had taken official positions on the personnel matter or sought involvement in the matter. The Board held that even if some of these activities were protected, Kentucky could legitimately consider Complainant's manner of raising health and safety complaints in determining whether it would renew Complainant in the coordinator position.

[N/E Digest XI C 2 b]
EMPLOYER'S MISTAKEN BUT HONEST ACTIONS

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), Complainant (who had unescorted access clearance) was treated as a "visitor" and given a Fitness-for-Duty drug test when, accompanying a friend to the work site, a worker had noticed alcohol on Complainant's breath. The Board found that the test had not been given as a means of discouraging Complainant's return to work because of protected activity, but based on a reasonable and honest belief that Complainant should be treated as a "visitor". The Board held that even if that was a mistake, such a mistake was not a violation of the ERA under the circumstances.

[N/E Digest XI D 1]
CONTRIBUTING FACTOR ELEMENT UNDER 1992 ERA AMENDMENTS; COMPLAINANT'S BURDEN

In Dysert v. Secretary of Labor, No. 95-3298 (11th Cir. Feb. 11, 1997) (case below 93-ERA-21), the Eleventh Circuit addressed the proper application of the statutory burdens of proof set forth in the whistleblower protection provisions of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851(b)(3). Complainant took the position that the ALJ and the Secretary misapplied the burdens set forth in section 5851(b)(3) as amended in 1992, arguing that after the amendments, a complainant is only required to make a prima facie showing of discrimination before the burden of persuasion shifts to the respondent to prove by clear and convincing evidence that it would have terminated the complainant in the absence of his or her protected activity.

The Eleventh Circuit rejected Complainant's position, finding that DOL's interpretation of section 5851(b)(3) -- that complainant must make a showing by a preponderance of the evidence that his or her protected activity was a contributing factor to the unfavorable personnel action alleged in the complaint -- is reasonable and entitled to deference by the courts.

[N/E Digest XII D 13]
PROTECTED ACTIVITY; PERSONNEL DISPUTE

In Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997), Complainant became involved in an internal EPA personnel matter during a period on which he was "on-loan" to the Commonwealth of Kentucky as a coordinator on environmental studies relating to several geographic areas of the state. Complainant attempted to obtain the assistance of a certain EPA expert involved in the personnel matter.

The Board, although not reaching the issue, expressed doubt that this was protected activity on the part of Complainant. The Board stated that "[a]bsent a showing that [the expert] possessed some truly unique abilities or insights without which the geographic initiatives would have been significantly impaired, fighting a personnel battle over the assignment of a specific employee to a particular project is probably too remote from protection of the environment to be protected under the Acts." Slip op. at 5 n3 (citation omitted).

[N/E Digest XIII B 8]
ADVERSE ACTION; FAILURE TO HIRE OR REHIRE

In cases of failure to hire or rehire, in order to show that adverse employment action occurred, complainants must establish that they were qualified for the position, they applied for the position, the employer was otherwise obligated to consider them, and the employer hired another individual not protected by the Acts or the position remained vacant after the application was rejected. Thus, in Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997), Complainant failed to carry his burden of proof where he did not prove that he requested or applied for renewal of his position or that Respondent was otherwise obligated to consider him for renewal.

[N/E Digest XIII B 18]
ADVERSE ACTION; NEGATIVE REFERENCES

In Robinson v. Shell Oil Co., No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

[N/E Digest XIV A 2 b]
FORMER EMPLOYEE

In Robinson v. Shell Oil Co., No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

[N/E Digest XIV A 2 e]
EMPLOYEE; PRISON INMATE NOT AN EMPLOYEE UNDER CAA OR TSCA

In Coupar v. U.S. Dept. of Labor, No. 95-70400 (9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below 92-TSC-6), the Seventh Circuit held that a prison inmate who works for Federal Prison Industries (a government corporation whose purpose is to provide work to inmates confined in federal institutions) is not an employee within the meaning of the whistleblower provisions of the Clean Air Act, 42 U.S.C. § 7622, and the Toxic Substances Control Act, 15 U.S.C. § 2622 because the economic reality of this relationship is "penological, not pecuniary." Slip op. at *7, citing Hale v. Arizona, 993 F.2d 1387, 1393 (9th Cir.) (en banc), cert. denied, 510 U.S. 946, 126 L. Ed. 2d 335, 114 S. Ct. 386 (1993).

The court distinguished Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989) and Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992), on the ground that those tests are only useful for determining whether an individual is an employee or an independent contractor. Here the problem is that work as a prisoner made Complainant neither an employee nor an independent contractor.

[N/E Digest XIV B 2]
EMPLOYER-EMPLOYEE RELATIONSHIP; REID AND DARDEN TESTS USED TO DETERMINE STATUS OF COMPLAINANT AS AN EMPLOYEE, NOT EMPLOYER-EMPLOYEE RELATIONSHIP

In Stephenson v. NASA, 94-TSC-5 (ARB Feb. 13, 1997), Complainant alleged that NASA ordered her immediate employer, a government contractor, to prohibit her from communicating with NASA personnel, to bar her from the Johnson Space Center and to revoke her unescorted access clearance because she complained about astronauts being exposed within the space capsule to ethylene oxide and Freon.

The ALJ concluded that because Complainant had never been directly employed by Respondent NASA, NASA was not an "employer" and Complainant was not an "employee" for purposes of the CAA whistleblower provision. The ALJ applied the standard adopted in Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995), aff'd, No. 95-3648 (6th Cir. Dec. 20, 1996), which in turn applied the common-law employment test articulated in Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. 1344, 1348 (1992) and Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).

The Board found that the ALJ's analysis was defective. Reid was based on the need to decide whether an independent professional contractor is an "employee" for purposes of a whistleblower provision. The instant question, however, is whether Complainant is protected under the CAA from retaliation by an entity, which although not her direct or immediate employer, is nonetheless a covered employer. See Coupar v. U.S. Dept. of Labor, No. 95-70400, slip op. at 11 (9th Cir. Jan. 30, 1997).

The Board wrote:

...[I]n a hierarchical employment context, an employer that acts in the capacity of employer with regard to a particular employee may be subject to liability under the environmental whistleblower provisions, notwithstanding the fact that that employer does not directly compensate or immediately supervise the employee. A parent company or contracting agency acts in the capacity of an employer by establishing, modifying or otherwise interfering with an employee of a subordinate company regarding the employee's compensation, terms, conditions or privileges of employment. For example, the president of a parent company who hires, fires or disciplines an employee of one of its subsidiaries may be deemed an "employer" for purposes of the whistleblower provisions. A contracting agency which exercises similar control over the employees of its contractors or subcontractors may be a covered employer. ... The issue of employment relationship necessarily depends on the "specific facts and circumstances" of the particular case, however.

Slip op. at 3-4 (citations omitted). Because the record was insufficient to decide this issue, the Board remanded the case for further development of the evidence on coverage and liability.

[N/E Digest XVI B 1]
REINSTATEMENT; COMPLAINANT DOES NOT HAVE OBLIGATION TO PRESENT HIMSELF/HERSELF; RATHER RESPONDENT OBLIGED TO MAKE OFFER

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), the ALJ erred in denying back pay for a period following Complainant's recovery from surgery on the ground that Complainant had not made himself available for reinstatement with Respondent. The Board stated that Complainant's failure to present himself for reinstatement was irrelevant because Respondent had the obligation to offer reinstatement.

[N/E Digest XVI C 2 a]
BACK PAY; USE OF AVERAGE NUMBER OF HOURS WORKED BY COWORKERS

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), the Board found that Complainant's calculation of back pay by multiplying the prevailing wage rate by the average number of hours worked by other employees was valid.

[N/E Digest XVI C 2 b]
BACK PAY; UNCERTAINTIES RESOLVED IN FAVOR OF COMPLAINANT

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), the Board found that the ALJ erred in concluding that the earlier of two possible dates that Complainant may have been laid-off should be used to determine back pay. The Board found that the ALJ failed to apply the principle that any uncertainties in calculating back pay are resolved in favor of the complainant.

[N/E Digest XVI C 2 b i]
BACK PAY; EVIDENCE OF LAYOFFS STANDING ALONE INSUFFICIENT TO ESTABLISH COMPLAINANT WOULD HAVE BEEN LAID OFF

Where Respondent presented evidence that its work force declined and expanded during the relevant back pay period, but did not show that layoffs were based strictly on seniority, or establish the seniority of the employees who were laid off and those who were retained, the Board in Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), found that Respondent did not overcome a presumption that Complainant was entitled to back pay for the full period.

[N/E Digest XVI C 2 c ii]
BACK PAY; UNEMPLOYMENT BENEFITS ARE NOT DEDUCTIBLE

Unemployment benefits are not deductible from gross back pay. Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), citing Artrip v. Ebasco Services, Inc., 89-ERA-23, slip op. at 4-5 (ARB Sept. 27, 1996).

[N/E Digest XVI C 2 c v]
MITIGATION OF DAMAGES; SELF-EMPLOYMENT NOT PRODUCING INCOME

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997) , Complainant became self-employed as a partner in a landscaping business subsequent to his discriminatory lay-off by Respondent, and stated that he did not earn any business income, other wages, or salaries between that date and the date of his affidavit. The Board considered whether self-employment cut off Complainant's entitlement to back pay. The Board wrote:

In discrimination cases, although a complainant has a duty to exercise reasonable diligence in attempting to mitigate damages by finding comparable work, the defendant "has the burden of proving that the plaintiff has failed to discharge its duty." Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). A court has noted that "[s]elf employment can constitute employment for purposes of mitigating damages, as long as the self-employment was a reasonable alternative to finding other comparable employment." Id.

This record lacks sufficient evidence to determine whether Hoffman's self-employment was a reasonable alternative to finding other employment. Respondent Boss had the burden to establish that Hoffman's self-employment constituted a failure to mitigate damages, but introduced no evidence on the subject. Therefore, employing the applicable burden of proof, we find that Boss has not established that Hoffman failed to discharge his duty of mitigation when he became self-employed. Accordingly, the back pay continues to accrue... [until Complainant begins to earn business income].

[N/E Digest XVI C 3]
PAYMENT FOR CERTIFICATION COURSE; NOT PART OF BACK PAY AWARD

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), the Board found that Complainant was not entitled to $800 in back pay representing the amount Respondent paid for each worker who attended asbestos certification school; rather, the Board ordered reinstatement and directed Respondent to pay for Complainant to attend the same course.

[N/E Digest XVI E 3 d ii]
ATTORNEYS FEES; DISALLOWANCE FOR RESEARCH ON IRRELEVANT ISSUE OR INSUFFICIENT DESCRIPTION

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), a case involving a roofing company, the Board disallowed attorneys fees sought for investigating, discussing, or copying the rules concerning asbestos and roofing because the existence of asbestos on the roof was not an issue in the case. The Board also disallowed items in the fee request that were not sufficiently described to permit the Board to determine whether they pertained to representing Complainant in the DOL proceeding.

[N/E Digest XVI E 3 d v]
ATTORNEYS FEES; IMPROPER TO REDUCE FEES ON GROUND THAT THEY ARE DISPROPORTIONATE TO AMOUNT OF BACK PAY SOUGHT

In Hoffman v. Bossert, 94-CAA-4 (ARB Jan. 22, 1997), the ALJ erred in reducing attorneys fees on the ground that they were disproportionate to the back pay sought. The Board found that the ALJ had proposed "a standard that would chill attorneys from taking moderately complicated cases where the complainant earned modest wages and hence the back pay sought would be small in relation to the attorney time expended. Moreover, in discrimination cases, the Supreme Court has rejected any requirement of proportionality between the damages and the attorney's fees awarded. Hensley v. Eckerhart, 461 U.S. 424 (1983). See also Abrams v. Lightolier, Inc., 50 F.3d 1204, 1221 (3d Cir. 1995)." Slip op. at 6.

[N/E Digest XVII]
PROPOSED PILOT TEST OF VOLUNTARY ARBITRATION AND/OR MEDIATION

On February 12, 1997, the Department published in the Federal Register a notice and request for comments on an amendment to the DOL's interim policy on the use of alternative dispute resolution. Expanded Use of Alternative Dispute Resolution in Programs Administered by the Department of Labor, 62 Fed. Reg. 6690 (1997). The notice seeks public comment on a proposed pilot test of voluntary arbitration and/or mediation in six categories of cases, including nuclear and environmental whistleblower cases. The notice states:

Under the proposed pilot test, after an employee's complaint had been investigated by the Department, DOL would determine whether the case was suitable for ADR under the criteria described in this Notice. If ADR was appropriate, the Department would offer the employer and the employee the option of mediation and/or arbitration, conducted either by a Settlement Judge in DOL's Office of Administrative Law Judges or by a private mediator or arbitrator. The Department would not be a party to, or participant in, this mediation or arbitration. The Department invites comment on how best to coordinate the pilot test with OALJ's existing settlement judge process.

The Administrative Review Board would not be bound by any resolution reached by the parties, but instead would review the results of mediation or arbitration. If appropriate (using the same standard now applied in ARB review of certain environmental-whistleblower settlements between employees and employers), the parties's mediated settlement or the arbitrator's decision would be embodied in a final order of the Administrative Review Board. The Department would revise or supplement its existing regulations for environmental whistleblower cases (29 CFR Part 24), as necessary, to incorporate these provisions.

62 Fed. Reg. at 6693.

The notice indicates that the Department is considering contracting with a nation-wide contractor to sponsor mediators and arbitrators. 62 Fed. Reg. at 6694. Parties would share responsibility for payment of fees and expenses of the mediator or arbitrator. 62 Fed. Reg. at 6694. The Department invites comment on potential conflict-of-interest problems in compensation of mediators or arbitrators where one party is financially unable or unwilling to pay one-half of the neutral's fee. 62 Fed. Reg. at 6695.

[N/E Digest XVII G 9]
SETTLEMENT; TAX WITHHOLDING

In Williams v. Public Service Electric & Gas Co., 94-ERA-2 (ARB Jan. 15, 1997), the Board adopted the ALJ's recommended decision finding that Respondent did not breach a settlement agreement to provide Complainant with a retirement benefit based on a single life annuity where Respondent withheld federal and state income taxes and FICA prior to purchasing the annuity in Complainant's name. The settlement had included a term retaining enforcement jurisdiction in the Department of Labor.

[N/E Digest XVII G 9]
RELEASE EXECUTED PRIOR TO FILING OF ERA COMPLAINT; BAR TO MAINTENANCE OF ERA COMPLAINT

In Khandelwal v. Southern California Edison, 97-ERA-6 (ALJ Jan. 17, 1997), the parties, prior to the filing of the instant complaint, had executed a severance agreement and a general release as part of an early retirement package. Complainant maintained that the agreement did not cause a waiver of his right to pursue an ERA employee protection complaint. Respondent, however, moved for summary judgment based on the release.

The ALJ found that the agreement was a settlement, regardless of the fact that it was executed prior to the filing of the instant complaint; the ALJ, however, concluded that such a settlement must still be approved by the Secretary of Labor. The ALJ found that general release provisions have been routinely upheld in whistleblower cases, and proceeded to consider whether the agreement adhered to principles of contract law for enforceability. Specifically, the ALJ considered whether the terms of the agreement violated public policy and whether Complainant's execution of the agreement and release was knowing and voluntary.

The ALJ concluded that the agreement did not violate public policy because it did not prohibit Complainant from bringing prospective claims or causes of action against Respondent based on facts occurring subsequent to the execution of the agreement, and did not prohibit Complainant from participating in or assisting with the investigation by any appropriate agency.

The ALJ applied the test found in Stroman v. West Coast Grocery Co., 884 F.2d 458 (9th Cir. 1989), to determine whether the "totality of the circumstances" indicated that the execution of the agreement by Complainant was knowing and voluntary. The ALJ noted, inter alia, the clarity of the agreement and release, Complainant's education and business experience, the absence of evidence of coercion, the dollar amount of the compensation received, and the lack of persuasiveness of an economic duress argument. The ALJ also concluded that since Complainant retained the benefits of the settlement, he could not benefit from any claim of duress.

Accordingly, the ALJ recommended that the motion for summary decision be granted.

[N/E Digest XVIII A 1]
WITHDRAWAL OF COMPLAINT BEFORE ALJ; ORDER TO SHOW CAUSE

In Jorgensen v. Guaranteed Muffler, Tire & Brake Service Center, Inc., 96-CAA-5 (ALJ Oct. 24, 1996), Complainants filed with the ALJ a motion to withdrawn their complaint. The ALJ found that the complaint should be dismissed pursuant to 29 C.F.R. § 24.5(e)(4). The Wage and Hour Division had found that discrimination was not a factor in the actions comprising the complaint.

The Board issued an order to show pursuant to 29 C.F.R. § 24.5(e)(4)(ii). The parties did not respond to the order, and the case was dismissed. Jorgensen v. Guaranteed Muffler, Tire & Brake Service Center, Inc., 96-CAA-5 (ARB Nov. 27, 1996).

[Editor's note: This approach under section 24.5(e)(4) is a departure from the Secretary's practice of handling voluntary dismissals pursuant to FRCP 41. See Nunn v. Duke Power Co., 84-ERA-27 (Sec'y Sept. 29, 1989)(because section 24.5(e) is labeled "Dismissal for Cause", that regulation is not applicable to voluntary dismissals); see generally N/E Digest at XVIII A 1]

[N/E Digest XVIII C 3]
DEFAULT JUDGMENT FOR FAILURE TO ATTEND HEARING; ALJ RECOMMENDATION MAY BE WAIVED BY SECRETARY

In Coupar v. U.S. Dept. of Labor, No. 95-70400 (9th Cir. Jan. 30, 1997) (available at 1997 U.S. App. LEXIS 1523)(case below 92-TSC-6), a prison inmate requested a hearing on his CAA and TSCA whistleblower complaints against Federal Prison Industries. The ALJ scheduled a hearing, but the Bureau of Prisons refused to allow a hearing to take place at the prison, and instead called the proceeding a deposition. The Bureau also refused to acknowledge the jurisdiction of the ALJ over Complainant's claim, and did not participate in the proceeding. The ALJ recommended a default judgment in Complainant's favor, although he also addressed the merits of the case. The Secretary of Labor rejected the ALJ's recommended decision and order, and concluded that Complainant was not an employee within the meaning of the Acts. The Seventh Circuit affirmed the Secretary's ruling.

Complainant argued before the Seventh Circuit that because the Bureau failed to appear, he was entitled to a default judgment. The court, however, noted that the Secretary had the discretion whether to grant a default judgment, 29 C.F.R. § 18.39(b), and found that The Secretary did not abuse his discretion by rejecting the ALJ's recommended default judgment. The court noted that the Bureau was not "without good cause" in believing that it was not required to attend the ALJ proceedings.


SURFACE TRANSPORTATION ASSISTANCE ACT WHISTLEBLOWER DECISIONS

[STAA Digest II B 3]
FORM OF COMPLAINT; LETTER TO SENATOR

In Ass't Sec'y & Ferguson v. K & P, Inc., 96-STA-17 (ARB Oct. 30, 1996), the Board held that a letter from Complainant Ferguson on behalf of himself and another complainant to Senator Nunn met the requirements of 29 C.F.R. § 1978.102.

[STAA Digest II E 4]
PROCEDURE; ADEQUATE TIME TO OBTAIN ATTORNEY

Where Respondent, who had appeared pro se, requested a new trial asserting for the first time upon review by the Board that he did not have enough time to retain an attorney for the hearing, the Board denied the request because there had been two months between the time Complainant requested a hearing and the date of the hearing was conducted, and because the record did not include that Respondent had sought a postponement of the hearing to seek an attorney. Ass't Sec'y & Ferguson v. K & P, Inc., 96-STA-17 (ARB Oct. 30, 1996).

[STAA Digest II E 5]
ALJ CONDUCT; APPROACHING RETIREMENT

In Ass't Sec'y & Ferguson v. K & P, Inc., 96-STA-17 (ARB Oct. 30, 1996), Respondent complained that he was denied a fair trial because the ALJ was "up for retirement". The Board noted that Respondent did not explain how that fact would have improperly affected the ALJ's impartiality.

[STAA Digest IV A 2 d]
MOTIVE; GATHERING OF EVIDENCE MUST HAVE PROMPTED SUSPICION

Where Complainant was fired for photocopying both his own and other drivers' time cards and his own manifest, but several of Respondent's employees knew that Complainant had raised the issue of drivers being forced to speed or violate the hours of service regulation, and Complainant would have no reason to copy other driver's time cards other than to document hours of service violations, the Board concluded that Respondent suspected at the time of the firing that Complainant was about to file a complaint to a government entity such as the DOT. Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997).

[STAA Digest IV C 2 a]
LEGITIMATE BUSINESS REASON FOR ADVERSE ACTION; COPYING OF TIME CARDS

In Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997), Respondent contended that firing Complainant for photocopying time cards was legitimate because manifests were confidential. The Board, however, found, inter alia, that there was no proprietary information in the documents copied, that there were no written policies or verbal instructions against copying manifests, that drivers routinely made such copies without being fired, the manifests were not labeled as confidential, and the manifests were posted in a location where a driver from another company could see them. In sum, the Board concluded that the only true fear Respondent had about photocopying of time cards was that they might reveal violations of DOT regulations. Thus, Respondent's "legitimate" reason was not credible because the manifests had not been treated as confidential and the information on the manifests would not reveal much to competitors.

[STAA Digest V A 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE

In Jackson v. Protein Express, 95-STA-38 (ARB Jan. 9, 1997), the Board emphasized that a refusal to drive is protected activity under the STAA if the driver's perception of the unsafe condition was reasonable at the time, even if subsequent mechanical inspection revealed no actual safety defect. See 49 U.S.C. § 31105(a)(1)(A)(2) (reasonable apprehension of serious injury). Thus, in the instant case the fact that the truck had been inspected with no finding of a problem, and driven for 10 days following Complainant's work refusal without incident, did not deprive Complainant's work refusal protection given the facts available to Complainant at the time he refused to drive.

[STAA Digest V A 4 b]
HEARSAY; STATE OF MIND

In Jackson v. Protein Express, 95-STA-38 (ARB Jan. 9, 1997), the Board found that an ALJ erred in sustaining an objection to a question eliciting testimony concerning whether a mechanic advised Complainant not to drive an assigned truck because it was unsafe. The Board found that such testimony was admissible, not to show that the tractor-trailer was in fact unsafe, but to show Complainant's state of mind when he refused to drive the truck. The Board stated that this testimony would be relevant to whether Complainant had a reasonable apprehension of serious injury. 49 U.S.C. § 31105(a)(1)(B).

[STAA Digest V B 1 c ii]
PROTECTED ACTIVITY; GATHERING OF EVIDENCE

Gathering evidence to be used to support a protected complaint is itself protected under whistleblower provisions. Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997), citing Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 , slip op. at 7-8 (Sec'y Nov. 20, 1995)(tape recording); Adams v. Coastal Production Operators, Inc., 89-ERA-3, slip op. at 9 and n.4 (Sec'y Aug. 5, 1992)(photographing oil spill); Haney v. North American Car Corp., 81-SDW-1, slip op. at 4 (Sec'y June 30, 1982)(tape recording) (all under analogous employee protection provisions of other statutes).

[STAA Digest VI B 1]
ADVERSE ACTION; ABANDONMENT OF POSITION VERSUS DISCHARGE

In Jackson v. Protein Express, 95-STA-38 (ARB Jan. 9, 1997), the Board rejected the ALJ's finding that Complainant abandoned his position and that no adverse employment action occurred. The Board held:

When no clear statements have been made by management establishing an employee's status, [t]he test of whether an employee has been discharged depends on the reasonable inferences that the employee could draw from the statements or conduct of the employer.' Pennypower Shopping News, Inc. v. N.L.R.B., 726 F.2d 626, 629 (10th Cir. 1984) (emphasis in original)." N.L.R.B. v. Champ Corp., 933 F.2d 688, 692 (9th Cir. 1990), cert. denied, Champ Corp. v. N.L.R.B., 502 U.S. 957 (1991).

Thus, the Board concluded that when Respondent failed to respond to Complainant's request for another truck to drive and to his message asking for clarification of his status, and removed his belongings from the truck against his wishes, Respondent had indicated it had discharged Complainant.

[STAA Digest VI B 4]
ADVERSE ACTION; NEGATIVE REFERENCES

In Robinson v. Shell Oil Co., No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

[STAA Digest VII A 1]
FORMER EMPLOYEE

In Robinson v. Shell Oil Co., No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

[STAA Digest IX A 5]
OFFER OF REINSTATEMENT; DECLINATION DUE TO ADVICE OF PHYSICIAN

On the advice of his physician, Complainant declined Respondent's offer of reinstatement. The Board noted that the Supreme Court has held that "absent special circumstances, the rejection of an employer's unconditional job offer ends the accrual of potential back pay liability." Ford Motor Co. v. EEOC, 458 U.S. 219, 241 (1982). Respondent's contention was that Complainant's rejection of its reinstatement offer tolled the accrual of back pay liability and eliminated the availability of front pay as a replacement for reinstatement. Complainant, however, contended that his diagnosed major depression was a special circumstance that permitted him to decline reinstatement without terminating Respondent's back pay liability and without forgoing front pay.

The Board held that a plaintiff's refusal to accept an offer of reinstatement is measured by an objective, reasonable person standard. Morris v. American Nat'l Can Corp., 952 F.2d 200, 203 (8th Cir. 1991); Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir. 1982), and directed the ALJ on remand to make a finding on whether the discharge in violation of the STAA was the proximate cause of Complainant's depression and related injuries.

Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997).

[STAA Digest IX B 2 a iii]
RELIEF FROM BACK PAY ORDER; POTENTIAL BANKRUPTCY OF RESPONDENT

In Ass't Sec'y & Ferguson v. K & P, Inc., 96-STA-17 (ARB Oct. 30, 1996), Respondent argued that his company would be bankrupted if it were required to pay over $40,000 in back wages. The Board noted that the Secretary had held that "a defendant seeking relief from a back pay order on the grounds that it would force the company out of business 'must carry a heavy burden of showing inability to comply'". Slip op. at 2, citing OFCCP v. Disposable Safety Wear, 59 Fair Empl. Prac. Cases [BNA] 1597, 1600, Sec'y Dec. Sept. 28, 1992, and cases cited therein. The Board found that Respondent did not make such a showing.

[STAA Digest X A 3]
SETTLEMENT FOLLOWING FINAL BOARD ORDER

In Caimano v. Brink's, Inc., 95-STA-4 (ARB Jan. 22, 1997), Respondent filed a motion seeking the Board's withdrawal of the Secretary's Decision and Order of Remand in which Respondent was found to have violated the STAA and the Board's Final Decision and Order in which Respondent was ordered to pay damages, interest, attorney's fees and costs. The motion was based on the need to effect a prompt resolution of the matter, and a suggestion that a settlement had been effected contingent on the vacating of the aforesaid decisions.

The Board indicated that Respondent's motion was essentially a FRCP 60(b) motion, and that it had no authority to entertain such a motion while jurisdiction rested with an appellate tribunal. Moreover, the Board held that consideration of such motion required submission of a settlement agreement that meets the criteria for approval of a STAA settlement as required by 29 C.F.R. § 1978.111(d)(2).

Since the Sixth Circuit had evidently not remanded the matter to the Board, and since it was not established that Complainant had agreed to the settlement suggested by the motion, the Board ordered the parties to show cause why Respondent's motion should not be denied.

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