WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
April 8, 1997
This newsletter covers materials that became available during the period from
March 8, 1997 to April 7, 1997.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[N/E Digest V C 1]
WAGE AND HOUR INVESTIGATION; REMAND
In Jones v. Pacific Gas & Electric
Co., 97-ERA-3 (ALJ Mar. 19, 1997)(order denying motion for reconsideration),
the Wage and Hour division found that Complainant was not an employee, and never reached the
merits. Respondent conceded before the ALJ that Complainant was, in fact, an employee, and
moved for a remand for Wage and Hour to complete its investigation. The ALJ denied the
motion finding that Complainant would be prejudiced because Congress had intended that ERA
complaints be expeditiously resolved, and because the proceeding before the ALJ is de
novo. The ALJ rejected Respondent's contention that there is a distinction between merely
flawed investigations, in which case a remand is not necessary, see Billings v. Tennessee
Valley Authority, 91-ERA-12 (ARB June 26, 1996), and an incomplete investigation.
[N/E Digest XI B 3]
PRIMA FACIE CASE; LACK OF RELEVANCE AFTER CASE IS FULLY TRIED ON
MERITS
Once a case is fully tried on the merits, it is not necessary for the ALJ to determine whether
the complainant presented a prima facie case. Once the respondent produces evidence that the
complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no
longer serves any analytical purpose to answer the question whether the complainant presented a
prima facie case. Rather, the relevant inquiry is whether the complainant prevailed by a
preponderance of the evidence on the ultimate question of liability. If he or she did not, it does
not matter whether a prima facie case was presented.
Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar. 31,
1996).
[N/E Digest XII B 1 a]
INTERNAL COMPLAINTS; 1992 AMENDMENTS TO ERA
A legal dispute whether purely internal complaints to management constitutes protected
activity under the ERA no longer exists because the 1992 amendments to the ERA explicitly
include an employee's notification to his or her employer of an alleged violation of the ERA.
See Section 2909(a) of the Comprehensive National Energy Policy Act of 1992, Pub. L.
No. 102-486, 106 Stat. 2776, 3123.
Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar. 31,
1996).
[N/E Digest XVI D 1]
BACK PAY; USE OF TITLE VII AUTHORITY
Back pay awards to victorious whistleblowers in DOL adjudications are to be calculated in
accordance with the make whole remedial scheme embodied in § 706 of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988). See Loeffler v.
Frank, 489 U.S. 549 (1988).
[N/E Digest XVI D 4 c]
COMPENSATORY DAMAGES; HOSTILE WORK ENVIRONMENT
In Smith v. Esicorp,
Inc., 93-ERA-16 (ALJ Feb. 26, 1997), the ALJ
considered compensatory damages for a whistleblower who had been
subjected to a hostile work environment. The ALJ noted several
factors that influenced his decision to recommend compensatory
damages in the amount of $100,000, including Complainant's
credibility, and testimony establishing that the hostile working
environment changed Complainant's demeanor and his outlook on
life (including depression, physical symptoms, family
disruptions, suicidal thoughts, and changed relationships with
friends).
In Smith, Respondent did not offer any contrary
evidence, but suggested that the validity of Complainant's
testimony regarding his emotional problems should be attenuated
because Complainant and his wife were the only witnesses at the
formal hearing. The ALJ dismissed this contention, noting that
expert testimony is not necessary to establish Complainant's
emotional distress resulting from Respondent's hostile working
environment, and finding that Complainant's emotional problems
could be inferred from the circumstances as well as established
by the testimony. The ALJ indicated that he was strongly
influenced by Complainant's emotional reactions during testimony,
which he found were genuine and showed obvious emotional
distress. The ALJ also noted examples of workplace harassment
other than the evidence that the Secretary based his finding of
hostile work environment, including continuing use of the word
"Bubba-gate" at the work facility.
[N/E Digest XVII A, C 3 and D 2]
SUBMISSION OF SETTLEMENT AGREEMENT IN FWPCA CASES
In James v. Ketchikan Pulp Co., 94-WPC-4 (ARB Mar. 11, 1997), the
ARB ordered the parties to submit a copy of a settlement agreement to the ARB, so that it could
determine whether the settlement agreement is fair, adequate and reasonable. The ARB also
ordered the parties to "provide the settlement documentation for any other alleged claims
arising from the same factual circumstances forming the basis of the federal claim, or to certify
that no other such agreements were entered into between the parties," citing Biddy v.
Alyeska Pipeline Service Co., 95-TSC-7 (ARB Dec. 3, 1996).
The ALJ's recommended decision indicates that the settlement agreement relates only to the
amount of Complainant's attorneys' fee application. James v. Ketchikan Pulp Co.,
94-WPC-4 (ALJ Dec. 13, 1996).
The ARB's order is a departure from the approach in Biddle v. United States Dept. of
the Army, 93-WPC-15 (Sec'y Mar. 29, 1995), adopting (ALJ May 6, 1994), a
FWPCA case in which the parties settled, but the matter was dismissed pursuant to Fed. R. Civ.
P. 41(a)(1)(ii) based on a stipulated withdrawal without a review of the settlement by the ALJ or
the Secretary. Rule 41(a)(1)(ii) was used in Biddlebased on the reasoning that the
statutory language of the FWPCA, unlike the CAA or the ERA, does not make the Secretary a
signatory to the settlement.
[N/E Digest XVII E 2]
SETTLEMENT; CONFIDENTIALITY V. PUBLIC INTEREST
In Seater v. Southern California Edison
Co., 95-ERA-13 (ALJ Mar. 11, 1997), the ALJ pointed out a conflict between the
public policy that whistleblower settlements should be subject to public scrutiny -- seeBiddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB Dec. 3, 1996) (importance of
publication of the true dollar amount of whistleblower settlements for the benefit of the public
and potential future whistleblowers -- and the parties' ability, by self-designation of settlement
terms as confidential commercial information, to invoke FOIA procedures obligating the
Department to provide predisclosure notification to the parties in the event of a FOIA request for
the settlement agreement. See 29 C.F.R. § 70.26(b). The ALJ suggested that the
ARB address this conflict, suggesting that the dollar amount of a settlement should be published,
or at the very least the submitter should be required to establish before the ALJ that the
information designated as confidential commercial information is truly material that could cause
substantial competitive harm if disclosed pursuant to FOIA.
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Mar. 27, 1997), however, the ARB declined the ALJ's
suggestion sub silentio. Rather, the ARB employed the following standard boilerplate
language in approving the settlement:
The records in this case are agency records which must be
made available
for public inspection and copying under the FOIA. In the event a request for inspection
and copying of the record of this case is made by a member of the public, that request
must be responded to as provided in the FOIA, If an exemption is applicable to the
record in this case or any specific document in it, the Department of Labor would
determine at the time a request is made whether to exercise its discretion to claim the
exemption and withhold the document. If no exemption were applicable, the document
would have to be disclosed. Since no FOIA request has been made, it would be
premature to determine whether any of the exemptions in the FOIA would be applicable
and whether the Department of Labor would exercise its authority to claim such an
exemption and withhold the requested information. It would also be inappropriate to
decide such questions in this proceeding.
Slip op. at 2.
[N/E Digest XVII G 4]
SETTLEMENT; ENFORCEMENT THROUGH BINDING ARBITRATION
In Nowak v. Environmental Department of the State of New Mexico,
96-CAA-9 (ALJ Mar. 4, 1996), the ALJ recommended approval of a settlement agreement that
included a provision that the agreement could be enforced through binding arbitration. The ALJ
held that "[s]uch a provision is appropriate in this case because the Eleventh Amendment
may preclude the Complainant from seeking to enforce the agreement in a Federal District Court
under the provisions of 42 U.S.C. § 7622(e). See Seminole Tribe of Florida v.
Florida, __ U.S. __, 116 S. Ct. 1114 (1996); Wilson-Jones v. Caviness, 99 F.3d 203
(6th Cir. 1996)." The ALJ, however, found that the arbitration provision does not limit the
Secretary's authority to seek enforcement of the agreement pursuant to 42 U.S.C. §
7622(d).
[STAA Digest IX B 2 a]
BACK PAY; USE OF TITLE VII AUTHORITY
Back pay awards to victorious whistleblowers in DOL adjudications are to be calculated in
accordance with the make whole remedial scheme embodied in § 706 of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988). See Loeffler v.
Frank, 489 U.S. 549 (1988).
[STAA Digest IX C]
ATTORNEY'S FEES; HIGHER RATE FOR APPELLATE WORK
In Polgar v. Florida Stage
Lines, 94-STA-46 (ARB Mar. 31, 1996), the
ARB found that a $15 per hour increase in the Complainant's attorney's basic billing rate for
work before the Court of Appeals was reasonable.
[STAA Digest XII]
LAW OF THE CASE
In Polgar v. Florida Stage
Lines, 94-STA-46 (ARB Mar. 31, 1996), the
matter had been appealed to the Eleventh Circuit, and affirmed. Complainant petitioned the
ARB for an award of additional back pay. In discussing Respondent's objections, the ARB
indicated that the basic formula for the back pay award, having been set out in the Secretary of
Labor's June 5, 1995 decision, and affirmed by the circuit court, was now the law of the case.
Slip op. at 3 n.3 and Slip op. at 4.