WHISTLEBLOWER NEWSLETTER

Office of Administrative Law Judges
United States Department of Labor

July 5, 1996

ADVERSE EMPLOYMENT ACTION; REMARKS ABOUT STATUS OF CASE
[N/E Digest XIII B 18]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board affirmed the ALJ's recommendation of summary decision concerning the Complainant's complaint that the Complainant's former Division Director had discussed the status of a pending whistleblower complaint at a staff meeting. The Respondent had submitted an affidavit from the Division Director in which he indicated that in response to a question he only stated that briefs had been submitted, a decision was expected in approximately one month, and that the decision would ultimately be made on review by the Secretary of Labor.

The Complainant's response to this affidavit consisted solely of argument, and no supporting affidavits or other evidentiary support. The Board observed that a "non-moving party may not defend against a motion for summary judgment with 'mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.'" Slip op. at 18, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Board also held that "it would be preposterous to conclude that a reference by [the Division Director] to the status of [the pending whistleblower complaint] constitutes retaliatory adverse action". The Board noted in this regard the ALJ's finding that the Complainant was not working in this division, did not attend the meeting, and did not suffer any adverse employment status or work environment as a result of the remark. Slip op. at 18-19.

ADVERSE EMPLOYMENT ACTION; NARRATIVE VERSUS ULTIMATE RATING
[N/E Digest XIII B 17]

The narrative contained in a performance appraisal may constitute adverse action, even if the ultimate rating does not. Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 32 (ARB June 14, 1996), citing Bassett v. Niagara Mohawk Power Corp., 85-ERA-34, slip op. at 4 (Sec'y Sept. 28, 1993).

ADVERSE EMPLOYMENT ACTION; PRESS RELEASE
[N/E Digest XIII B 18]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), one Respondent issued a press release following the ALJ's issuance of a recommended decision regarding Complainant's original complaint. The press release characterized the award as modest, noted disagreement with the ALJ's finding of retaliation, expressed an intent to address the matter with the Secretary of Labor, and noted that the Secretary issues the final order. The Complainant characterized the press release as "callous and remorseless", with a "retaliatory and condescending statement that the award was 'modest.'" The Board agreed with the ALJ that reference to a "modest" award was not retaliatory where the recommended award was $30,000, but the Complainant had sought $11 million. The Board noted that it was more important that the press release caused the Complainant no tangible job detriment nor did it contribute to creation of a hostile work environment. The Board quoted, inter alia, the ALJ's observation that the press release "was not physically threatening, humiliating, or even an offensive utterance." Slip op. at 20, quoting Varnadore v. Oak Ridge National Laboratory, 94-CAA-3, slip op. at 9 (ALJ Apr. 28, 1994)("Varnadore II").

AFTER ACQUIRED EVIDENCE; DOES NOT DEFEAT COMPLAINT, BUT IS RELEVANT TO DAMAGES
[N/E Digest XI F]

Evidence of legitimate grounds for termination of employment of a complainant that is acquired by the employer after the decision to terminate does not defeat a discrimination complaint. Such evidence, however, is relevant to the issue of damages. Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996), citing McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879 (1995) and Smith and Fitzpatrick v. Tennessee Valley Authority, 89-ERA-12, slip op. at 2-6 (Sec'y May 17, 1995).

BURDEN OF PROOF IN ERA AFTER 1992 AMENDMENTS IN TERMINATION OF EMPLOYMENT CASE; CLEAR AND CONVINCING EVIDENCE STANDARD
[N/E Digest XI D 1]

To prevail, an ERA whistleblower complainant must establish, by a preponderance of the evidence, that the respondent terminated his or her employment, at least in part, based on the complainant's protected activity. Pursuant to the 1992 amendments to the ERA, if the complainant carries this burden, the respondent may avoid liability only by establishing, by clear and convincing evidence, that he or she would have been terminated in the absence of the protected activity. See 42 U.S.C. § 5851(b)(3)(D); Johnson v. Bechtel Const. Co., 95-ERA-11, slip op. at 2 (Sec'y Sept. 28, 1995); Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), appeal docketed Dysert v. Sec'y of Labor, No. 95-3298 (11th Cir. Sept. 28, 1995); Yule v. Burns Int'l Security Serv., 93-ERA-12, slip op. at 7-13 (Sec'y May 24, 1995); see generally Grogan v. Garner, 498 U.S. 279 (1991) (discussing higher clear and convincing evidence standard in comparison with preponderance of evidence standard in Section 523(a) of Bankruptcy Code case). Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996).

CAUSATION; ADVERSE PERFORMANCE EVALUATION AND RETALIATORY MOTIVE; ERROR TO BASE FINDING OF RETALIATION ON FINDING THAT SUPERVISORS WERE TOO EMOTIONALLY INVOLVED IN DISPUTE TO RENDER FAIR EVALUATION
[N/E Digest XI E 14]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), an ALJ concluded in regard to a performance evaluation given to the Complainant during an "emotionally charged" period resulting from related whistleblower litigation, that the supervisors who prepared the evaluation could not be impartial in supervising and rating the Complainant's job performance. Thus, the ALJ found that the performance evaluation was suspect, and that maintenance of that evaluation in the Complainant's personnel file was unfair and prejudicial.

The Board found that the ALJ erred in focusing on this concern -- that whether it was possible for the supervisors to have neutral or impartial feeling toward the Complainant was irrelevant. Rather, the relevant question is whether retaliatory animus in fact infected the performance evaluation; if not, there was no retaliation regardless of what the supervisors felt about the Complainant.

The Board stated that "[t]he most useful measure of whether a performance appraisal was given out of retaliatory motive is whether it is fair and accurate description of an employee's job performance." Slip op. at 33 (citations and footnote omitted) The Board noted that "[o]f course, the fact that an evaluation is not fair or accurate does not automatically mean that it was motivated by animus, but it would be evidence from which such animus appropriately could be inferred...." Slip op. at 33 n.26. The Board then reviewed the Complainant's testimony, the uncontroverted testimony of the supervisors, and the ALJ's finding, and concluded that the performance appraisal was fair and accurate and not motivated by retaliatory animus.

EMPLOYER; INDIVIDUALS AS: CABINET SECRETARY; FORMER HEAD OF OAA; SUPERVISOR
[N/E Digest XIV B 4 j]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board held that the Secretary of Energy was not the Complainant's employer within the meaning of the ERA. Citing Stevenson v. National Aeronautics and Space Administration, 94-TSC-5 (Sec'y July 3, 1995) (individuals are not subject to suit under the TSCA and CAA).

Similarly, the Board held that a complaint lodged against the former head of the Office of Administrative Appeals, U.S. Dept. of Labor, should be dismissed because she was not the Complainant's employer. Her only connection to the Complainant was that she was alleged to have been employed by one of the Respondents to advise it on the defense of the complaint brought by the Complainant.

In addition, the Complainant's supervisor was dismissed as a party where the Complainant did not allege that the supervisor was his employer.

EVIDENCE; LINE OF QUESTIONING ABOUT SUPERVISOR'S "BRAIN CHEMISTRY"
[N/E Digest XI E 14]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board held that the ALJ properly terminated the Complainant's attempt to pursue a line of questioning about his supervisors' "brain chemistry" in regard to Complainant's performance evaluation. The Board noted that the best test of whether the supervisors' testimony that they evaluated the Complainant impartially was credible was the performance evaluation itself, which was both accurate and fair. Slip op. at 30-31 n. 24.

[Editor's note: But see Timmons v. Mattingly Testing Services, 95-ERA-40, slip op. at 14 n.9 (ARB June 21, 1996) (evidence concerning actions taken by Respondent in response to NRC investigation prior to termination of Complainant's employment should be admitted into evidence because it is relevant to mindset of Respondent's deciding officials)]

EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and XI E 14]

In Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996), the Board reviewed principles governing the evaluation of evidence of retaliatory intent in ERA whistleblower cases.

The Board indicated that where a complainant's allegations of retaliatory intent are founded on circumstantial evidence, the factfinder must carefully evaluate all evidence pertaining to the mindset of the employer and its agents regarding the protected activity and the adverse action taken. There will seldom be "eyewitness" testimony concerning an employer's mental process. Fair adjudication of whistleblower complaints requires "full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." Slip op. at 11 (footnote omitted).

The Board continued:

Antagonism toward activity that is protected under the ERA may manifest itself in many ways, e.g., ridicule, openly hostile actions or threatening statements, or, in the case of a whistleblower who contacts the NRC, simply questioning why the whistleblower did not pursue corrective action through the usual internal channels.... In addition, deliberate violations of NRC regulations suggest antagonism toward the NRC regulatory scheme and thus may provide support for an inference of retaliatory intent....

When disciplinary action, including termination from employment, is involved, the past practice of the employer in similar situations is relevant to determining whether there has been disparate treatment, which may provide highly probative evidence of retaliatory intent.[8]...

Furthermore, a complete understanding of the testimony of the witnesses, including testimony regarding technical procedures, is necessary for the drawing of pertinent inferences and the resolution of conflicts in that testimony.... In the instant case, a proper understanding of the testimony of the witnesses concerning relevant technical procedures requires at least a superficial understanding of the fields of radiography and welding inspection.

______
[8] A complainant is not required, however, to establish disparate treatment in comparison to other employees, or other whistleblowers, in order to establish retaliatory intent....

Slip op. at 11-14 (citations omitted). The Board then held that the ALJ erred in refusing, based on relevancy, to hear testimony on technical aspects of the handling of radioactive isotopes at the Respondent's facility, the technical aspects of bridge girder inspection, quality standards and practices prevailing at the Respondent's facility prior to the Complainant's termination, and the Respondent's compliance or non-compliance with NRC safety regulations prior to its investigation by the NRC. The Board found that the ALJ did not err in refusing to hear testimony concerning corrective measure taken after the Complainant's termination, because that evidence is not relevant to the mindset of Respondent's deciding officials at the time of Complainant's termination of employment. On the other hand, "[e]vidence of related action, corrective or otherwise, taken by [the Respondent] following initiation of the NRC investigation but prior to [the Complainant's] termination is relevant to the issue of the mindset of [Respondent's] deciding officials at the pertinent time...." Slip op. at 14 n.9.

[Editor's note: But see Varnadore v. Oak Ridge National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3 (ARB June 14, 1996)(ALJ properly terminated line of questioning about supervisor's "brain chemistry")]

The Board also found that the ALJ erred in refusing to admit, on relevancy grounds, two NRC investigative reports -- this evidence was pertinent to the question of retaliatory animus among Respondent's managers, as the NRC reports documented knowing, deliberate violations of NRC regulations by Respondent's management. The Board noted that the ALJ was correct that a complainant is not required to establish an actual violation of NRC regulations, but indicated that he erred in refusing the reports because they could be relevant to retaliatory intent.

EXPEDITED HEARINGS; ALJ ERRS IN LIMITING DISCOVERY OR LENGTH OF HEARING IN ORDER TO COMPLY WITH STATUTORY OR REGULATORY TIME LIMITATIONS, WHICH ARE DIRECTORY ONLY
[N/E Digest VII A 2, VII D 1, VII D 2 and IX I]

In Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996), the Board severely criticized an ALJ who had limited discovery and the length of the hearing to attempt to comply with statutory and regulatory time limits. The Board noted that the time limits were directory only, and found that the ALJ improperly limited the parties' pre-hearing preparation and the presentation of evidence at hearing. Excerpts from the Board's discussion follow:

The statute and regulations do contain provisions concerning the time within which the Department of Labor's investigation and adjudication of ERA complaints should be completed.... Such provisions have been construed as directory, rather than mandatory or jurisdictional, however, ... and should not interfere with the full and fair presentation of the case by the parties, in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 554(c), (d), 556(d). Moreover, the full and fair presentation of the case by the parties is crucial to serving the ERA purpose of protecting employees from retaliation for acting on their safety concerns.... The importance of safety in the handling of radioactive materials cannot be gainsaid; there is a crucial public interest at stake when issues of non-compliance with safety regulations arise....

* * *

The time constraints placed on the proceedings before the ALJ directly interfered with the parties' opportunity for a full and fair presentation of the case at hearing. In conducting the hearing, the ALJ erred in repeatedly limiting testimony and refusing to admit documentary evidence on relevancy grounds.

FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS; EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]

In Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Complainant was assigned to investigate an EPA employee regarding alleged improprieties in the awarding and administration of a computer modeling contract to study the effects of acid rain. The Complainant alleged in his CAA complaint that his supervisors gave him directions that constituted interference in the investigation, and that the EPA Inspector General had disregarded the Complainant's recusal from the investigation and forced him to lead the investigation. The ALJ concluded that the CAA whistleblower complaint did not state allegations related to the environmental safety or violations of the CAA, and recommended dismissal of the complaint. The Board observed that this was analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Board, citing Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's employee protection provision is construed broadly, and that the Complainant's allegations of protected activity met that broad construction and may constitute protected activity. For instance, the Complainant could establish that the alleged interference with the investigation would lead the EPA to rely on acid rain studies that understate the harmful effects of acid rain, leading to less than appropriate regulation. The Board also found that the Complainant stated the other elements of a prima facie case, and therefore remanded for a hearing.

The Board noted that the Complainant also complained that interference by his EPA managers may have violated the civil service laws or the Inspector General Act. The Board stated that "[t]he allegation of a violation of other statutes does not defeat the claim under the employee protection provision [of the CAA]." Slip op. at 9.

HOSTILE WORK ENVIRONMENT; BLACKLISTING; WELL-PLEADED FACTS TO WITHSTAND RULE 12(b)(6) MOTION
[N/E Digest XIII B 1 and XIII C]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant alleged that the Respondent retaliated against him when (1) he was introduced as a panelist at a stakeholder's meeting in a stigmatizing fashion ("we all know him"); (2) "murmurs and groans" were generated by this introduction; and (3) the Secretary of Energy had a cold reaction to the Complainant at a meeting, which was allegedly provoked by blacklisting.

The Board found that the introduction was merely a statement of fact given the amount of publicity that Complainant's whistleblower cases had generated. The Board stated that "nothing which even arguably had an adverse impact on Varnadore's work environment can be read into this innocuous remark." The Board found the "murmurs and groans" allegation to be frivolous, the Complainant having failed to allege any facts from which it could be concluded that this contributed to a hostile work environment.

In regard to the Secretary of Labor's alleged remark, the Board stated that "it is not enough for [the Complainant] to allege that Secretary O'Leary had a negative reaction to him, and that negative reaction must have been caused by 'blacklisting communications' from [the Respondent.]" Rather, [the Complainant] must allege facts that show that [the Respondent] made blacklisting remarks to Secretary O'Leary which in turn contributed to a hostile work environment. In the absence of any alleged facts regarding this element of his claim, it must be dismissed pursuant to Rule 12(b)(6)." Slip op. at 66.

HOSTILE WORK ENVIRONMENT; SUPERVISOR WHO DISCOURAGED EMPLOYEES FROM HAVING CONTACT WITH COMPLAINANT AND SUPERVISOR WHO POSTED AN OFFENSIVE MEMORANDUM CONCERNING THE COMPLAINANT

• NON-CONSIDERATION OF NON-ACTIONABLE EVENTS IN REGARD TO ISSUE OF PERVASIVENESS AND REGULARITY
  
• FINDING THAT POSTING WAS OBNOXIOUS AND OFFENSIVE IS, IN EFFECT, A FINDING OF DETRIMENTAL EFFECT
  
• RESPONDEAT SUPERIOR; LIABILITY DEPENDS ON FORESEEABILITY OR SCOPE OF EMPLOYMENT AND ON INADEQUATE RESPONSE; ADEQUACY OF RESPONSE IS BASED ON REASONABLENESS TEST

[N/E Digest XIII C]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board considered whether two acts by supervisors, which although not resulting in a tangible job detriment, constituted a hostile work environment. In an earlier decision, the Secretary of Labor had held that a supervisor in another division who had discouraged his employees from having contact in the halls with the Complainant was motivated, at least in part, by retaliatory animus. Similarly, the Secretary had held that the posting by another supervisor of a memorandum that explicitly ridiculed the Complainant's whistleblower activity was retaliatory.

The Board noted that the Secretary applies Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371 (1993) and the five part test articulated in West v. Philadelphia Electric Co., 45 F.3d 744,753 (3d Cir. 1995) to hostile work environment cases in DOL whistleblower cases.

Applying Harris, and the Third Circuit test, the Board found that although the Complainant alleged retaliation beginning in 1989 and continuing though 1993, only these two incidents were actionable. These two incidents considered cumulatively, were not "pervasive, severe or regular". The Board found that the Complainant was understandably upset by the posting, but there was no showing that it had a significant impact on the work environment.

Although the Board agreed with the Secretary's earlier finding that the posting was obnoxious and offensive (the Board noting that this was in essence a detrimental effect on the Complainant), the posting incident foundered on the element of respondeat superior. The Board cited Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994), in determining whether an employer is liable for the acts of a supervisor. According to the Sixth Circuit, liability depends on "1) whether the supervisor's harassing actions were foreseeable or fell within the scope of his employment and 2) even if they were, whether the employer responded adequately and effectively to negate liability." Pierce, 40 F.3d at 803. See also Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994). Although the ALJ in the Complainant's first complaint had found that the posting was "almost inevitable" in light of the anti-whistleblower environment he found to exist at Oak Ridge Nuclear Laboratory, the Board noted that the Secretary had rejected that finding in a prior decision in the matter, and that it could not concur with the ALJ's finding. Further, the Board found that the employer's response upon learning of the posting effectively negated potential liability.

The Complainant's supervisor had immediately called a meeting with the supervisor who had posted the offensive memorandum, and then sent him a memorandum pointing out the Respondent "want[s] to avoid even the perception of a hostile working environment for [the Complainant] and for all other ACD people." Slip op. at 77, quoting transcript from first proceeding. The Board, relying on Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431-432 (7th Cir. 1995), applied a reasonableness test, and found that this immediate response was sufficient to negate liability. The Board distinguished Smith v. Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996), on the ground that the instant case involved isolated incidents, one of which was immediately attended to, while Smith involved upper level managers who knew of repeated, derogatory cartooning and took no action to remedy the situation.

NEW EVIDENCE OFFERED DURING REVIEW BY BOARD
[N/E Digest VIII B 2 b and IX D 1]

In Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996), the Complainant submitted two affidavits to the Board, asking that they be admitted into evidence and considered on review, or that the case be remanded to the ALJ for the taking of additional evidence.

The Board looked to the provisions of 29 C.F.R. § 18.54(c) and Fed. R. Civ. P. 60(b)(2), and the decision of NLRB v. Jacob E. Decker and Sons, 569 F.2d 357 (5th Cir. 1978) for standards on admission of newly discovered evidence. The Board determined that in regard to the first affidavit, the Complainant could only have become aware of the affiant's potential as a witness through extensive discovery, and that the parties had not been afforded an opportunity for such discovery. The ALJ had limited discovery because of the statutory and regulatory time limits on whistleblower proceedings; the Board indicated that those time limits must yield to a litigant's need to prepare a full and fair presentation of the case. The Board found that the limits on discovery rendered the affiant's testimony "not readily available" prior to hearing. Since the Respondent must be given a meaningful opportunity to respond to affiant's allegations, the case was remanded to the ALJ.

The second affidavit was written by the Complainant. Although there was no evidence that such information was not readily available prior to the hearing, or that the Complainant was excusably ignorant of it prior to the hearing, the Board found that the ALJ's limitation of the parties pre-hearing preparation and the presentation of the evidence at the hearing was improper, and that the post-hearing admission of evidence relevant to the issues raised in the Complainant's affidavit was appropriate "as the conduct of the proceedings before the ALJ interfered with the overall presentation of the Complainant's case." Slip op. at 8-9 (footnote omitted).

OFFICIAL NOTICE
[N/E Digest VII D 2]

In Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996), the Board held that the contents of the American Welding Society Bridge Welding Code may be subject to the taking of official notice under 29 C.F.R. § 18.201. Slip op. at 9 n.6.

PARTIES; UNINCORPORATED DIVISION
[N/E Digest XIV B 1]

Oak Ridge National Laboratory is an unincorporated division of Energy Systems, Inc., and is not a legal entity. Therefore, in Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), it was dismissed as a party. The same is true of other divisions of Energy Systems, Inc.

PARTIES; PARENT COMPANY
[N/E Digest XIV B 1]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), Lockheed Martin and Lockheed Martin Technologies were dismissed as Respondents where they were merely parent companies of the Complainant's employer, Energy Systems, Inc.

PARTIES; SUBDIVISION OF FEDERAL DEPARTMENT CANNOT BE HELD INDEPENDENTLY LIABLE
[N/E Digest XIV B 4 e]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant named both the Department of Energy and DOE's Oak Ridge Operations Office. The Oak Ridge Operations Office, being merely a subdivision of DOE, is subsumed within DOE and cannot be held independently liable. Slip op. at 55 n.37.

POSTING OF WHISTLEBLOWER PROVISION OF ERA; EXPLANATORY MATERIAL NOT REQUIRED
[N/E Digest XXII]

Where the Respondent had posted the text of 42 U.S.C. § 5851, the Complainant's claim, based on the absence of "explanatory material that would make it meaningful [for employees]" was dismissed under Fed. R. Civ. P 12(b)(6). Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 68 (ARB June 14, 1996).

PRIMA FACIE CASE; MAY BE BASED ON ALLEGATIONS FROM THE COMPLAINTS AND SUPPORTING PAPERS ALONE; NO FINDINGS OF FACT
[N/E Digest XI E 13]

In Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Board reviewed two matters in which the ALJs had recommended summary dismissal of the complaints. The Board expressly made no findings of fact, but made affirmative findings that the Complainant had established a prima facie case.

RECOMMENDED DECISIONS SUBJECT TO PLENARY REVIEW
[N/E Digest VIII A 2 a]

ALJ recommended decisions under the environmental whistleblower provisions are subject to plenary review by the Secretary of Labor or his or her delegatee. In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 54 (ARB June 14, 1996).

REINSTATEMENT; CHANGE IN CORPORATE IDENTITY
[N/E Digest XVI B 2]

In the May Newsletter, the supplemental order regarding remand in Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) was casenoted to the effect that upon the sale of a subsidiary, the company that retained liability would have the obligation to reinstate the Complainant to a substantially similar position. The matter was revisited in Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ARB June 20, 1996)

The Respondent asked for reconsideration because that ruling had the effect of ordering an entity that was not a party to the current action to reinstate the Complainant. Specifically, the company that sold the subsidiary that employed the Complainant retained the obligation to defend the action and to indemnify the new owner against monetary damages. That company was not a named Respondent. The Board noted that the entity that violated the ERA has the obligation to offer reinstatement to the Complainant, which in this case was the named Respondent. It continued: "If a separate contractual obligation exists that requires another entity to assume [the offender's] reinstatement obligation, the proper means to resolve that dispute is through an enforcement action." Slip op. at 3.

The Board noted that the Department of Labor would not normally be concerned with a private indemnity agreement, but that the Department has the responsibility to enforce the employee protection provision of the CAA and to ensure that a bona fide reinstatement is offered. Observing that the selling company's interests and the offending former subsidiary's interest had diverged on the issue of reinstatement, the Board directed the ALJ on remand to give the selling company notice and an opportunity to be heard on this issue. The Board pointed out to the parties that back pay liability continues to accrue until a bona fide offer of reinstatement is made.

RES JUDICATA
[N/E Digest XXI A]

Where issues relating to salary increases were litigated and decided in the proceeding relating to Complainant's original complaint (which had later been consolidated with two other complaint proceedings on review before the Secretary of Labor and the Administrative Review Board), the ALJ in a subsequent complaint properly concluded that the salary increase issue was res judicata. Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 52-53 (ARB June 14, 1996).

RESPONDENT'S AWARENESS; COMMUNICATION REQUIREMENT; CLARITY OF COMMUNICATION
[STAA Digest V A 4 c iv]

Where the supervisor who made the decision to terminate the Complainant's employment had a reasonable belief that the Complainant could drive safely because he was not advised that the Complainant had made a trip that was not in the itinerary, nor was he advised that the Complainant was too fatigued to drive safely, the supervisor did not know, and could not reasonably have known, that the Complainant's refusal to take dispatch was protected activity. The supervisor had only been told that the Complainant "felt that he was over the hours of DOT." Vogt v. Atlas Tours, Ltd., 94-STA-1 (ALJ Sept. 21, 1994), adopted, (ARB June 24, 1996).

SETTLEMENT CONTINGENT ON AFFIRMANCE OF SECRETARY'S ORDER BY APPELLATE COURT
[N/E Digest XVII G 9]

The Secretary in Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995), determined that the Respondent had violated the ERA and remanded to the ALJ to determine the Complainant's complete remedy. On remand, the parties reached a settlement agreement as to damages that indicated that the Respondent intends to seek judicial review of the Secretary's decision, and that expressly provided that the Respondent's obligation to provide relief to the Complainant under the agreement was contingent on the appellate court affirming the Secretary's order. The Administrative Review Board approved the settlement, noting that the Respondent agreed not to seek a stay of the Board's final decision concerning damages pending judicial review. Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (ARB June 7, 1996).

SETTLEMENT; CONFIDENTIALITY PROVISION; NOTIFICATION CLAUSE
[N/E Digest XVII B 1 a]

In Gillilan v. Tennessee Valley Authority, 89-ERA-40, 91-ERA-31, 94-ERA-5 and 9, 95-ERA-26 and 32 (ARB May 30, 1996), the parties included a confidentiality provision in their settlement that requires Complainant and his counsel to timely notify the Respondent's counsel if they receive legal process or an order purporting to require disclosure of the agreement. The Board, citing McGlynn v. Pulsair Inc., 93-CAA-2 (Sec'y June 28, 1993), found that the notification requirement was not violative of public policy because it did not restrict or impinge upon the Complainant or his counsel from such disclosure after appropriate legal process.

To the same effect: Davidson v. Temple University, 94-ERA-25 (ARB June 24, 1996); Abbasi v. Bechtel Power Corp., 96-ERA-4 (ARB May 31, 1996)

SETTLEMENT; MEANING OF PROVISION THAT RESPONDENT WILL TAKE "ALL REASONABLE STEPS" TO PREVENT REPRISAL
[N/E Digest XVII G 9]

In Smith v. Tennessee Valley Authority, 96-ERA-10 (ARB June 24, 1996), the parties' settlement agreement included a provision that the Respondent "will take all reasonable steps to ensure that no reprisal will be taken against [the Complainant] as a result of this settlement or as a result of his participation in the appeal process." Slip op. at 2 (emphasis as supplied by ARB). The Board construed this language "to mean that Respondent's managers, administrators and employees will be made aware that any such reprisal is contrary to law and the occurrence of such would be the basis for a separate environmental whistleblower claim by Complainant." Id.

SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY; ENERGY REORGANIZATION ACT
[N/E Digest XIV B 4 b and XX E]

The Department of Energy is not a proper party defendant in an ERA whistleblower case because the United States has not waived sovereign immunity under the ERA. Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), citing Teles v. U.S. Dept. of Energy, 94-ERA-2 (Sec'y Aug. 7, 1995).

SOVEREIGN IMMUNITY UNDER THE SDWA; INDIAN NATION
[N/E Digest XX E]

In White v. The Osage Tribal Council, 95-SDW-1 (ALJ May 31, 1996), the ALJ recommended a finding that the Osage Nation was not immune from suit pursuant to the Safe Drinking Water Act's whistleblower provision based on sovereign immunity. The ALJ based this finding on Phillips Petroleum Co. v. U.S. Environmental Protection Agency, 803 F.2d 545, 555-556 (10th Cir. 1986), and the 1986 amendments which added section 1451 to Part E of the Safe Drinking Water Act. Safe Drinking Water Amendments of 1986, Pub. L. No. 99-339, §302, 100 Stat. 642, 665-66 (1986). The ALJ also found that the Tribal Council had expressly consented to suit when the Osage Tribe began contracting with the United States in 1979, at which time the Tribal Council adopted the Osage National Federal Programs Policies and Procedures Manual which requires compliance with state and federal employment laws.

STANDARDS OF CONDUCT AT HEARING
[N/E Digest VII D 6]

It is not required that a hearing be conducted in a rigid or overly formal manner. Nonetheless, an ALJ should not hesitate to apprise the witnesses of basic standards of conduct during examination by counsel. It is not the role of the witness to object on relevancy grounds to a question or line of questioning. See 29 C.F.R. §§ 18.36, 18.37, 18.611. Where, however, a party is appearing without legal counsel, it is appropriate for the party, when being examined as a witness to raise such objections. Timmons v. Mattingly Testing Services, 95-ERA-40, slip op. at 15 n.11 (ARB June 21, 1996).

TIMELINESS OF REQUEST FOR HEARING
[N/E Digest VI E]

Filing periods may, under certain specific circumstances be subject to equitable tolling, such as where the complainant has in some extraordinary way been prevented from asserted his or her rights, or where the complainant raised the specific statutory claim but in the wrong forum. Where, however, the Complainant simply ignored the procedural requirements governing the filing of a request for a hearing, and had notice of those procedural requirements and time limits and failed to comply, the ALJ's recommendation of dismissal was adopted as the final order in the case. Backen v. Entergy Operations, Inc., 95-ERA-46 (ARB June 7, 1996).

UNDERLYING VIOLATION; CLAIM FOR WHICH RELIEF CAN BE GRANTED; REIMBURSEMENT OF DOE CONTRACTOR FOR DEFENSE OF EARLIER WHISTLEBLOWER COMPLAINT
[N/E Digest II B 2]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant complained that DOE improperly reimbursed a contractor for its defense of an earlier complaint made by the Complainant. The Board, applying Fed. R. Civ. P. 12(b)(6), found that this aspect of the complaint failed to state a claim upon which relief may be granted. The Board found that (1) the Complainant was not an employee of DOE; (2) the Complainant failed to state how DOE's funding policies had an adverse effect upon his compensation, terms, conditions, or privileges of employment; and (3) the Complainant failed to claim that DOE's funding of the defense was motivated by retaliatory animus. The Board also noted the ALJ's conclusion that DOL had no jurisdiction to decide claims contesting DOE's use of funds appropriated by Congress was "patently correct". Slip op. at 58 n.40.

UNDERLYING VIOLATION; LACK OF SUBJECT MATTER JURISDICTION; UNDERLYING VIOLATION; EMPLOYMENT OF FORMER DOL OFFICIAL
[N/E Digest II B 2]

In Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant named the former head of the Office of Administrative Appeals as a Respondent on the ground that she allegedly acted in an unethical manner by advising one of the Respondents on an environmental whistleblower case that was pending in the Department of Labor at the time she was director of the OAA. The Board, assuming arguendo that the former director's acts were unethical under 29 C.F.R. § 2.2, found that they were not actionable under the environmental whistleblower provisions. Thus, this claim was dismissed for lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1).