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 & Environmental Digest I B 1]
WHISTLEBLOWER PROVISIONS ARE NOT INTENDED TO SHIELD EMPLOYEES FROM THE CONSEQUENCES OF THEIR OWN MISCONDUCT OR FAILURES

In Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5), the court in holding that Complainant could not use his whistleblower status to avoid the consequences of his inaction in seeking gainful alternate employment at Respondent's laboratory observed:

Whistleblower provisions "are intended to promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly asserting company violations of statutes protecting the environment." Passaic Valley Sewerage Comm'rs v. Department of Labor, 992 F.2d 474, 478 (3d Cir. 1993). They are not, however, intended to be used by employees to shield themselves from the consequences of their own misconduct or failures. See Kahn v. Secretary of Labor, 64 F.3d 271, 279 (7th Cir. 1995) (rejecting "[plaintiff's] attempt to hide behind his protected activity as a means to evade termination for non-discriminatory reasons").

[Nuclear & Environmental Digest II B 3 a]
ORAL COMPLAINT - FLSA ANTI-RETALIATION ACTION

In Valerio v. Putnam Associates, Inc., No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints, and found that it does. In footnote 4, the court noted that it was leaving for another day the question whether combined oral and written complaints, or alleged complaints of a wholly oral nature, allow invocation of the protections of § 215(a)(3). In so noting, the court cited by comparison Clean Harbors Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998), a STAA anti-retaliation decision in which the panel spoke of a combination oral/written complaint as "filed."

[Nuclear & Environmental Digest IV B 1]
EQUITABLE TOLLING; COMPLAINANT CANNOT AVAIL HERSELF OF "MISLEADING" ACTIONS BY RESPONDENT AS GROUNDS FOR TOLLING WHERE SHE HAD ALREADY CHARGED IN WRITING THAT SHE HAD BEEN TERMINATED IN RETALIATION FOR PROTECTED ACTIVITY

In his recommended decision in Pastor v. Veterans Affairs Medical Center, 1999-ERA-11 (ALJ Apr. 28, 1999), the ALJ concluded that the complaint should be dismissed for lack of timeliness. Complainant sought to invoke equitable tolling on the ground that she did not learn of several circumstances surrounding her termination until the time of the discovery deposition of her supervisor in a MSPB proceeding, and therefore was entitled to tolling of her ERA whistleblower complaint based on Respondent's alleged actively misleading her regarding the reason for her dismissal. The ALJ, however, reviewed Third Circuit law, and concluded that because Complainant's letter to the U.S. Office of Special Counsel laying the foundation for her MSPB proceeding explicitly detailed her charge that she was terminated from employment by Respondent in retaliation for her disclosure of violations of NRC rules and regulations, it was inconsistent for Complainant to claim that it was not until the discovery deposition of her supervisor that facts that would support her cause of action became apparent, or should have become apparent to a person with a reasonably prudent regard for her rights.

[Nuclear & Environmental Digest VII D 6]
REQUEST BY TELEVISION STATION TO VIDEOTAPE HEARING

In Ass't Sec'y & Haefling v. United Parcel Service, 1998-STA-6 (ALJ Apr. 23, 1999), the ALJ received an inquiry from a television station whether it would be permitted to videotape at least a portion of the hearing. The hearing was scheduled for a U.S. Tax Court courtroom located in a Federal Building and Courthouse. Complainant took no position on the matter, while the Prosecuting Party and Respondent both objected. The ALJ considered the provisions of 29 C.F.R. Part 2, Subpart B, and concluded that the regulation did not proscribe the introduction of audiovisual coverage in an STAA case absent a specific witness objection. Nonetheless, based on the local rules of the United States District Court, which clearly prohibit the use of audiovisual equipment in any courtroom located within the Federal Building and the environs of the Courthouse, and the U.S. Tax Court's stipulations for the use of Tax Court courtrooms, which also prohibits photographing or broadcasting of any proceedings, the ALJ concluded that he had no discretion to authorize the videotaping of all or any portion of the proceeding.

[Nuclear & Environmental Digest VIII C 2 a]
COURT OF APPEALS' STANDARD OF REVIEW

Excerpt from Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5):

The Secretary's decision is reviewed under § 706 of the Administrative Procedure Act. See 42 U.S.C. § 5851(c)(1) (incorporating standards of 5 U.S.C. § 706(2)). Consequently, the decision will be set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A). Consistent with this level of scrutiny, the Secretary's factual determinations will be set aside only if they are unsupported by substantial evidence. See id. § 706(2)(E). The substantial-evidence standard does not allow a court to displace the agency's " 'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" Matters of law are reviewed de novo, giving deference to the Secretary's construction of the ERA if reasonable. Because the Secretary's opinion is in agreement with and based in part on the ALJ's credibility determinations, it is entitled to great deference. This court reviews the entire record, including the ALJ's recommendation and any evidence contrary to the Secretary's decision.

(case citations omitted).

[Nuclear & Environmental Digest IX B 2]
MOTION FOR SUMMARY REVERSAL BEFORE ARB

The Administrative Review Board disfavors motions for summary reversal of the ALJ's recommended decision because they merely tend to multiply inappropriately the number of pleadings filed in a case. Any arguments that would support a motion for summary reversal can be included in the parties' primary briefs. Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, 1999-CAA-1, 4 and 6 (ARB Apr. 22, 1999).

To the same effect: Cox v. Lockheed Martin Energy Systems, 1997-ERA-17 (ARB Feb. 24, 1999); Williams v. Lockheed Martin Corp., 1998-ERA-40 and 42 (ARB Apr. 20, 1999).

[Nuclear & Environmental Digest IX B 2]
BRIEFS BEFORE ARB; PAGES NOT USED IN INITIAL BRIEF DOES NOT INCREASE PAGES AVAILABLE FOR REBUTTAL BRIEF

In Cox v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ARB Apr. 21, 1999), the ARB denied Complainants' request that they be allowed to exceed the ARB's page allowance for reply briefs on the ground that they had not used all of the allowable pages in the initial brief. The ARB denied the motion, finding that the original page allowance for Complainant's rebuttal brief would be sufficient space to made rebuttal arguments.

[Nuclear & Environmental Digest X D]
SIMILARITY BETWEEN BRIEFS OF CO-RESPONDENTS; COMPLAINANTS' REQUEST FOR ADVERSE INFERENCE

In Cox v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ARB Apr. 21, 1999), Complainants filed a motion requesting that the ARB draw adverse inferences because a motion filed by a Federal respondent (DOE) was similar to a motion filed by a private Respondent (Lockheed Martin). The ARB found the motion to be frivolous, concluding that similarities in pleadings in cases with multiple respondents is not ususal or surprising. Thus, the ARB denied Complainants' motion.

[Nuclear & Environmental Digest XI]
BURDEN OF PROOF IN ERA CASE

Excerpt from Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5):

If . . . the case proceeds to a hearing before the Secretary, the complainant must prove the same elements as in the prima facie case, but this time must prove by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision. See § 5851(b)(3)(C); see also Dysert v. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir. 1997) (holding that Secretary's construction of § 5851(b)(3)(C), making complainant's burden preponderance of evidence, was reasonable). Only if the complainant meets his burden does the burden then shift to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. See § 5851(b)(3)(D).

[Nuclear & Environmental Digest XI A]
ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE CASE ANALYSIS NOT RELEVANT

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 has produced evidence in an attempt to show 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. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Eltzroth v. Amersham Medi-Physics, Inc., 1997-ERA-31 (ARB Apr. 15, 1999).

[Nuclear & Environmental Digest XI A]
VIEW THAT EVEN ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE CASE ANALYSIS MAY HAVE SOME RELEVANCY

In Ilgenfritz v. U.S. Coast Guard Academy, 1999-WPC-3 (ALJ Mar. 30, 1999), the ALJ recognized that in a fully litigated case, the analysis of a prima facie case may not serve any useful purpose since the final decision will rest on the complainant's ultimate burden of proof. The ALJ, however, noted that working through the prima facie elements is still useful since the ultimate burden of proof still involves many of the elements covered in the prima facie analysis Moreover, the ALJ noted "if the complainant, even in a fully litigated hearing, fails to establish an element of the prima facie case, evaluating whether an ultimate burden of proof is met may not serve any purpose." Slip op. at n.29.

[Nuclear & Environmental Digest XI A 2 c]
RETALIATORY MOTIVE; EMPLOYER NOT REQUIRED TO READ COMPLAINANT'S MIND

In Macktal v. U.S. Dept. of Labor, No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), Complainant responded to a counseling report for excessive absenteeism by submitting to his employer a handwritten memorandum in which he objected to the counseling report and stated that his "plan of action" was to file a non-compliance complaint with the NRC concerning the safe operation of the facility at which he worked. He also stated: "In a[n] effort to preserve my health and avoid any further harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these matters." A few hours later, Complainant's employment was terminated.

The Fifth Circuit observed that a complainant must show that the evidence is sufficient to permit an inference that the protected activity was the likely reason for the adverse action, and agreed with the ARB's observation that "[i]t would have required considerable mental gymnastics on the part of Brown & Root managers to recognize that, when Macktal said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures." Macktal v. U.S. Dept. of Labor, No. 98-60123, quoting Macktal v. Brown & Root, Inc., 1986-ERA-23, slip op. at 5 (Sec'y Dec. Jan. 6, 1998). The court also agreed with the ARB's finding that"[w]e agree with the ALJ that a reasonable person could only interpret Macktal's request as a resignation and could not be held responsible for failure to intuit what Macktal now claims was on his mind." Id., quoting Macktal v. Brown & Root, Inc., 1986-ERA-23, slip op. at 5-6 (Sec'y Dec. Jan. 6, 1998).

See also Valerio v. Putnam Associates, Inc., No. 98-1399 (1st Cir. Apr. 9, 1999), a Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), decision, relying in part on Clean Harbors Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998), a STAA whistleblower decision. In Valerio the court observed that "not all abstract grumblings will suffice to constitute the filing of a complaint with one's employer." The court wrote that "written comments and criticisms made to an employer may not always amount to filed complaints [under the FLSA]." Thus, the court decided that, like the panel in Clean Harbors under the STAA, "we have little choice but to proceed on a case-by-case basis, addressing as a matter of factual analysis whether the internal communications to the employer were sufficient to amount to the 'filing of any complaint' within the statutory definition."

[Nuclear & Environmental Digest XI E 14]
WORK REFUSAL

An employee's work refusal based on a reasonable good faith belief that working conditions are unsafe is protected activity under the ERA employee protection provision; however, a refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and, if found safe, adequately explained to the employee. See Pensyl v. Catalytic, Inc., 1983-ERA-2, Slip op. at 6-7 (Sec'y Jan. 13, 1984).

In Eltzroth v. Amersham Medi-Physics, Inc., 1997-ERA-31 (ARB Apr. 15, 1999), Complainant was hired as a Iodine I-125 Seeds Inspector a position which requires the visual and physical inspection of radioactive pellets; while being interviewed for the job, Complainant had been informed that the job entailed some radiation exposure. During training, Complainant became concerned that the protective gloves used provided little or no protection from radiation. A supervisor attempted to assuage Complainant's apprehension, but Complainant was not convinced, and the next day a meeting was arranged with the radiation safety officer who also explained that the exposure was lower than regulatory limits set by the government. When the supervisor arrived later in the day, Complainant was continuing to refuse to work with the I-125 seeds, and the supervisor asked whether Complainant had decided whether he would perform the assigned job duties. Complainant responded that he would not work unless arrangements were made "to reduce his exposure to 0." The supervisor responded that Complainant's position was unreasonable, and again asked if Complainant would perform the job; Complainant replied that he wanted to think about it overnight. After consulting with other management officials, the supervisor informed Complainant that he was being terminated from employment. A subsequent investigation by the Illinois Department of Nuclear Safety revealed no employee radiation exposure in excess of regulatory and administrative limits.

The ARB found that Complainant's initial refusal to work was protected activity; however, the refusal lost that protection because (1) Respondent made significant efforts to investigate and to explain the safety of the work area to Complainant, which was sufficient to fulfill Respondent's duty to respond to Complainant's good faith work refusal, and (2) Complainant's demands for a "zero exposure" environment did not have a reasonable or good faith basis and therefore did not constitute protected activity.

One member of the ARB dissented, concluding that Complainant should not be held to have lost protected status. First, the dissent found that there was not convincing evidence that Complainant had demanded "zero exposure," and that even if he had, in context it "was little more than an after-the-fact expression of frustration resulting from his inability to get straight answers from his employer to legitimate and straight-forward safety concerns that had been raised in good faith." Second, the dissent found (as did the ALJ) that the record established that Respondent did not adequately investigate and explain the safety of Complainant's work area; the dissent found that the Secretarial decisions interpreting Pensyl required more of Respondent in investigating Complainant's concerns, and explaining the safety of the work area.

[Editor's note: Both the majority and dissent found support in the ALJ's recommended decision. Eltzroth v. Amersham Medi-Physics, Inc., 97-ERA-31 (ALJ Oct. 2, 1997). Perhaps this is because the ALJ's recommended decision is based on slightly different reasoning from either the ARB's majority or dissent essentially, that Complainant was discharged for refusing to do the job he was hired to do and that there was no evidence of discriminatory animus. Although the ALJ found earlier in the recommended decision that Respondent had given an inadequate explanation to Complainant's questions partly because of an inadequate investigation, he also found that Respondent had expressed appropriate concern, and made attempts to directly addresses those concerns and assuage his fears. The lesson may be that retaliatory animus by Respondent is not required in a work refusal case. Although the ARB's majority and dissent viewed the evidence differently, they both carry the analytical underpinning that, in a work refusal case, the reasonableness of Complainant's safety complaint must be undermined in order to remove Respondent's liability for an adverse employment action based on the work refusal. Thus, the ALJ's finding of lack of retaliatory animus does not even appear to be relevant under the Pensyl analysis. Respondent's good faith, but inadequate, investigation of, and explanations to, Complainant's questions do not permit it to escape liability. Compare Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989) (Section 5851 provides that an employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge).]

[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINTS UNDER PRE-1992 AMENDMENTS ERA

In Macktal v. U.S. Dept. of Labor, No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), the court declined to revisit the 5th Circuit decisions in Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) and Ebasco Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993), which held that purely internal complaints were not protected by the ERA whistleblower provision as it existed prior to the 1992 amendments to the ERA.

[Nuclear & Environmental Digest XII B 1 c]
WRITTEN EXPRESSION OF INTENT TO FILE COMPLAINT WITH NRC CONSTITUTED PROTECTED ACTIVITY EVEN UNDER PRE-1992 AMENDMENTS ERA

In Macktal v. U.S. Dept. of Labor, No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), the court held that a written expression of intent to file a complaint with the NRC constituted protected activity under Section 210 of the ERA as it existed prior to the 1992 amendments (the whistleblower provision is now found in Section 211 of the ERA).

[Nuclear & Environmental Digest XIII A]
ADVERSE EMPLOYMENT ACTION' SPECULATION INSUFFICIENT; COMPLAINANT MUST ESTABLISH ADVERSE CONSEQUENCES

In Trimmer v. U.S. Dept. of Labor, No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5), Complainant had gone through periods in which he was either on workers' compensation, returned to work under an "alternate placement" program, using sick leave and vacation, leave without pay, seeking work under the alternate placement program, or receiving disability retirement payments. After Complainant had not worked for over a year, Respondent determined that Complainant should be notified that unless he actively pursued alternate placement, he would be terminated from employment. Respondent, however, delayed sending the notice for several months because it feared that it would be viewed as retaliatory because Complainant had recently been quoted in a newspaper article critical of Respondent's safety procedures. Complainant agreed to the new alternate placement job search, and was medically discharged after the job search was unsuccessful.

On appeal to the 10th Circuit, Complainant contended that the ARB erred when it found that Respondent did not engage in an adverse employment decision when it postponed sending the notice. Complainant argued that the delay denied him the opportunity to be considered for jobs that were open for a portion of the period of delay, and caused him to conduct the search during a time when employment opportunities were limited because of a reduction in force.

The court held that "[r]ather than simply asserting that his employment opportunities would have been better had the alternate-placement search been conducted [immediately after the decision to issue the notice had been made], instead of the [period during the RIF], [Complainant] must prove that he suffered adverse consequences from the delay which he would not have suffered had the letter been sent [when the decision to issue the notice was made]." The court found dispositive of Complainant's claim uncontradicted evidence that the delay did not preclude nor hinder Complainant from requesting an alternate placement process or conducting his own job search; that Complainant knew about open positions through a friend and, in one case, through a notice, but declined to apply. The court distinguished decisions cited by Complainant on the ground that in those cases the employer had completely eliminated the complainants' employment opportunities.

Finally, the court found that even if it were to compare the two time periods, Complainant had produced no evidence to show that his employability would have been better during the earlier time period; that other evidence showed that the alternate employment process only worked about 10% of the time; that the delay actually benefitted Complainant by extending his disability status; that a claims manager for Complainant's private insurer reported that Complainant was not motivated to return to work; and Complainant had received special accommodation to conduct the alternate placement search from his home so as not to jeopardize the disability benefits.

[Nuclear & Environmental Digest XIX]
COMPLAINANT WHO DELIBERATELY CAUSES VIOLATION OF ERA

In Fields v. U.S. Dept. of Labor Adm. Review Bd., No. 98-2614 (11th Cir. Apr. 21, 1999) (per curiam) (case below 1996-ERA-22), the court affirmed the decision of the ARB to accept the ALJ's recommendation of summary decision (following an evidentiary hearing) dismissing the complaint based on undisputed and overwhelming evidence that Complainants' had acted deliberately and without direction from Respondent's management when they twice conducted unauthorized tests on the nuclear reactor which triggered the alarm light. Although Complainants may have had a good motive of trying to obtain data to show that Respondent had not adequately addressed their safety concerns, the court held that "it is clear that petitioners' unauthorized frolics were just what Congress envisioned when it made the whistleblower statute inapplicable to "any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter . . . ." Section 211(g), 42 U.S.C. 5851(g).

[STAA Digest II B 1]
ORAL COMPLAINT - FLSA ANTI-RETALIATION ACTION

In Valerio v. Putnam Associates, Inc., No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints, and found that it does. In footnote 4, the court noted that it was leaving for another day the question whether combined oral and written complaints, or alleged complaints of a wholly oral nature, allow invocation of the protections of § 215(a)(3). In so noting, the court cited by comparison Clean Harbors Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998), a STAA anti-retaliation decision in which the panel spoke of a combination oral/written complaint as "filed."

[STAA Digest II O]
REQUEST BY TELEVISION STATION TO VIDEOTAPE HEARING

In Ass't Sec'y & Haefling v. United Parcel Service, 1998-STA-6 (ALJ Apr. 23, 1999), the ALJ received an inquiry from a television station whether it would be permitted to videotape at least a portion of the hearing. The hearing was scheduled for a U.S. Tax Court courtroom located in a Federal Building and Courthouse. Complainant took no position on the matter, while the Prosecuting Party and Respondent both objected. The ALJ considered the provisions of 29 C.F.R. Part 2, Subpart B, and concluded that the regulation did not proscribe the introduction of audiovisual coverage in an STAA case absent a specific witness objection. Nonetheless, based on the local rules of the United States District Court, which clearly prohibit the use of audiovisual equipment in any courtroom located within the Federal Building and the environs of the Courthouse, and the U.S. Tax Court's stipulations for the use of Tax Court courtrooms, which also prohibits photographing or broadcasting of any proceedings, the ALJ concluded that he had no discretion to authorize the videotaping of all or any portion of the proceeding.

[STAA Digest IV A 2 d]
RESPONDENT'S KNOWLEDGE OF PROTECTED ACTIVITY

Where Complainant did not establish by a preponderance of the evidence that Respondent was aware of his complaints to the DOT about hours of service violations at the time Respondent sued him in small claims court for unauthorized use of a vehicle, the ARB dismissed Complainant's STAA complaint. Respondent had presented evidence that other employees had been charged for unauthorized use of a company vehicle, and OSHA had found that another employee had been sued to collect such a charge. Anderson v. Eagle Carriers, Ltd., 1997-STA-33 (ARB Apr. 16, 1999).

[STAA Digest V B 1 a]
INTERNAL COMPLAINTS IN FLSA ANTI-RETALIATION ACTION

In Valerio v. Putnam Associates, Inc., No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints. Noting a spilt in the circuits, the First Circuit aligned itself with the Sixth, Eighth, Tenth and Eleventh Circuits in deciding that an internal complaint to the employer may satisfy section 215(a)(3). In rendering its decision, the court relied in part on its decision in Clean Harbors Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998), which interpreted the similar anti-retaliation provision of the Surface Transportation Assistance Act, 49 U.S.C. § 31105(a)(1)(A). The court rejected the Defendant's contention that Clean Harbors should not guide the interpretation of the FLSA provision because of different purposes and enforcement schemes of the FLSA and the STAA essentially, that while the STAA concerns public health and safety and therefore there is a need for dispatch, such immediacy is not present for FLSA complainants. The court noted other objects of the STAA anti-retaliation scheme, such as the policy of not forcing employees to go straight to the government with safety concerns but permitting an employer to remedy problems voluntarily and quietly. The court also noted that the "fear of economic retaliation might operate to induce aggrieved employees to accept substandard conditions." [citation omitted]

The court, however, held that "not all abstract grumblings will suffice to constitute the filing of a complaint with one's employer." The court wrote that "written comments and criticisms made to an employer may not always amount to filed complaints [under the FLSA]." Thus, the court decided that, like the panel in Clean Harbors under the STAA, "we have little choice but to proceed on a case-by-case basis, addressing as a matter of factual analysis whether the internal communications to the employer were sufficient to amount to the 'filing of any complaint' within the statutory definition."