In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit discussed the purpose of the employee protection provision of the ERA in the context of a case arising out of a nuclear power plant that had a history of reactor fires. The court wrote:

Among the people best positioned to prevent fires are the workers who tend to nuclear plants. But if fear of retaliation kept workers from speaking out about possible hazards, nuclear safety would be jeopardized. To protect whistleblowers, Congress forbade employers from retaliating against employees who act in prescribed ways to ensure safety. 42 U.S.C. § 5851.

In Roberts v. Battelle Memorial Institute, 96-ERA-24 (ARB June 4, 1997), the Board assumed, for purposes of rendering a summary decision that a June 6, 1994 complaint raised by Complainant with the Ohio Civil Rights Commission and the EEOC raised a nuclear health or safety concern and therefore was a protected activity under the ERA. Complainant had been suspended without pay on June 21-23, 1994 and discharged on July 18, 1994.

Complainant alleged that she made a telephone complaint to the Department of Energy in August 1994. The Board, however, held that an ERA complaint must be in writing, and that in the absence of any written notation of the telephone conversation, it could not constitute a valid ERA complaint.

Complainant alleged that she filed a timely written complaint with the Department of Labor on January 12, 1995, but did not provide a copy of that complaint to Respondents, the ALJ or the Board. The complaint was brought pursuant to E.O. 11246, which prohibits discrimination -- not on the basis of expression of nuclear safety concerns -- but rather on the basis of race, color, religion, sex and national origin. DOL had forwarded the complaint to the EEOC, which the Board concluded suggested that it was filed pursuant to the Executive Order. Although the Board recognized that such complaint could have included statements that would support an ERA complaint, since a copy of the complaint had not been produced, it could not conclude that it did.

Finally, Complainant filed a written complaint with the Department of Energy that apparently alleged discrimination for raising health and safety issues. Since this complaint was filed more than 180 days after Complainant's discharge, it was not timely, and that there was no grounds for equitable tolling (the Board adopting the ALJ's analysis).

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), Complainant had distributed leaflets at a company picnic containing various grievances and seeking to unionize. Following his discharge, he sent a letter to a state agency as follows:

    I am enclosing a copy of the letter I distributed on 7-25-93 (Sunday), later that week 7-30-93 (Friday) I was terminated from job.

    #1 listed in the letter pertains to certain environmental problems relating to the Blades Plant.

    But a major one at all plants would be of drum cleanout after cement delivery.

       Any Question Please Call

       Thanks

    Henry Immanuel

The ALJ found that this did not "raise the precise statutory claim that section 507 of the WPCA had been violated, even though a lawyer may see in them the basis for filing a complaint." The ALJ interpreted the letter as merely having "the appearance of a citizen's report of a possible law violation."

The Board disagreed, finding that the letter sufficiently connected Complainant's termination of employment with whistleblowing activity. The Board held that the letter was "not rendered defective as a complaint because it does not allege a violation of the employee protection provisions of any statute, state or federal, and does not seek any relief.'" Slip op. at 5, quoting ALJ's recommended decision at 5. The Board concluded that complainants who file without assistance of legal counsel should be afforded broad latitude in framing the contents of their complaints.

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), Complainant submitted a letter to a state agency that was sufficient to raise a cognizable complaint under the employee protection provision of the FWPCA. The ALJ, however, concluded that equitable tolling was not appropriate because Respondent had not received notice of this filing within the appropriate limitations period. The Board disagreed, noting that neither the statute nor the regulations specified when a Respondent must be notified of the complaint.

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), the Board rejected Complainant's request for a remand instructing the ALJ to issue subpoenas for relevant witnesses and evidence. The Board stated that "the WPCA does not authorize the issuance of subpoenas in whistleblower proceedings. [Complainant's] constitutional argument for this request cannot be considered because it is not within the Board's jurisdiction. Secretary's Order 2-96, § 4 (delegation of authority and assignment of responsibility), 61 Fed. Reg. 19978-79. See n.1."

See also Malpass v. General Electric Co., 85-ERA-38 and 38 (Sec'y Mar. 1, 1994).

A court of appeals reviewing a Secretary of Labor decision under 42 U.S.C. § 5851(c) reviews matters of law de novo, keeping in mind the deference paid to the Secretary of Labor in construing the statutes he or she is charged with administering. On matters of fact, the court uses a substantial evidence standard of review. 5 U.S.C. § 706(2)(E). The court asks whether such relevant evidence exists " 'as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). Where the ALJ and the Secretary of Labor differed, the court reviews the Secretary's order "more critically." Ultimately, however, the decision is the Secretary's, and court only ensures that the Secretary's conclusion, if different from the ALJ's, is supported by articulate, cogent, and reliable analysis. Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44).

In Verdone v. Northeast Utilities, 97-ERA-27, 28 and 30 (ALJ June 2, 1997), the ALJ denied Complainant's request that his new complaint that was still pending before Wage and Hour be consolidated with his current complaint before the ALJ because the consolidation request was premature.

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), although Complainant only referred to an alterative instance of protected activity at the hearing, his omission of this instance from the post-hearing brief to the ALJ did not amount to a waiver of the argument.

In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the Board noted that the following statement by Alyeska's Manager of Quality Services to the Vice President for Human Resources, appeared to be direct evidence of discrimination: "ASIS [an inspection service hired by Alyeska, and Complainant's employer] will probably suspend Acord. Acord will probably become a whistleblower shortly." The Board, however, found that, in context, these comments did not constitute sufficient evidence of discrimination. Complainant had a longstanding history of performance deficiencies, and at the time the statement was made, frustration with Complainant in regard to lack of timely documentation of reports was evident.

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), Complainant testified that he mailed a letter to a state agency and that the agency had not responded; that letter was found by the Board to be was sufficient to raise a cognizable complaint under the employee protection provision of the FWPCA. Respondent answered that Complainant had provided no proof that the letter was actually mailed or received. The Board, however, found that "[Complainant's testimony was] persuasive when considering that it is a reasonable presumption that mail may occasionally be lost or misdelivered, distributed to the wrong office or section of a governmental agency, lost within the agency, or otherwise misplaced, forgotten or unprocessed." Slip op. at 5 n.5 (citations omitted).

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), the Board did not question Complainant's testimony that he made internal complaints to several managers because Respondent could have called these managers to rebut the assertion, but did not.

Complainant had wanted application of an inference that all testimony of witnesses not called by Respondent would have been adverse to Respondent. The Board noted that it did draw an adverse inference in regard to the internal complaint issue, but that Respondent's failure to call various personnel to testify did not oblige the ALJ to resolve all issues with respect to which they may have testified against Respondent. The Board quoted Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d 303, 305 (8th Cir. 1981): "The rule permits an adverse inference to be drawn; it does not create a conclusive presumption against the party failing to call the witness."

In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit sought to dispel some seeming perplexity of 42 U.S.C. § 5851, and the extent to which it draws from the general law of employment discrimination. The court wrote:

    In 1992, Congress amended § 5851 to codify a particular framework regarding burdens of proof where no statutory guidance existed before. Energy Policy Act of 1992, P.L. 102-486, § 2902(d); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1164 (9th Cir.1984) (upholding similar framework). Under the statutory framework, a complainant must first pass a gatekeeper test before an inquiry may commence. The Secretary may investigate only if the complainant succeeds in making a "prima facie showing" that retaliation for protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C. § 5851(b)(3)(A). Then the investigation must go forward, unless the employer "demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of such behavior." 42 U.S.C. § 5851(b)(3)(B).

    Section 5851's reference to a "prima facie showing" has bred some confusion, chiefly because the phrase evokes the sprawling body of general employment discrimination law. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The Secretary of Labor and S&W have quarreled over how these cases and their innumerable progeny affect Section 5851's evidentiary burdens. But Section 5851 is clear and supplies its own free-standing evidentiary framework. After a complainant has cleared the prima facie gatekeeper test--and assuming she has not been knocked out by a preemptory "clear and convincing" response from the employer--the Secretary is to investigate whether the complainant's behavior actually was "a contributing factor in the unfavorable personnel action." 42 U.S.C. § 5851(b)(3)(C). The burden to persuade the Secretary falls upon the complainant, and she must do so by a preponderance of the evidence. Dysert v. Sec. of Labor, 105 F.3d 607, 610 (11th Cir.1997). If the complainant succeeds, the employer has a second chance to offer "clear and convincing evidence" that it would have done the same thing anyway, i.e., "in the absence of such behavior." § 5851(b)(3)(D).

    For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves. "Recent accounts of whistleblower harassment at both NRC licensee ... and [Department of Energy] nuclear facilities ... suggest that whistleblower harassment and retaliation remain all too common in parts of the nuclear industry." H. Rep. No. 102-474(VIII), at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2282, 2297. "These reforms," the House Report continues, "are intended to address those remaining pockets of resistance." Id.

In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the Board considered in regard to the issue of retaliatory intent the lack of proof that Complainant was treated differently from other employees during a lay off. The Board noted that proof of disparate treatment is not a necessary element of proof in a whistleblower case, but that the lack of such evidence supported the ALJ's conclusion that Complainant's lay off was not retaliatory.

See also Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3, slip op. at 12 (ARB May 28, 1997) (considering lack of disparate treatment in evaluating lawfulness of discharge).

In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the Board found that Complainant's theory would have required believing an elaborate and expensive charade was established to cover up a plot to discharge Complainant. The Board then noted that if Respondents had sought a reason to fire Complainant to cover up retaliatory intent, they could have used an incident in which Complainant exhibited insubordination by failing to show up for a meeting to discuss gaps in his paperwork. The Board found that Respondent's toleration of this incident "further negates any inference that their later actions in suspending [Complainant] and discharging him were motivated by retaliation." Slip op. at 10-11 (footnote and citations omitted).

In United States v. Dr. Warren E. Smith Community Mental Health/Mental Retardation and Substance Abuse Centers, 1997 U.S. Dist. LEXIS 9424 (E.D. Pa. 1997), a qui tam action under the False Claims Act (FCA), 31 U.S.C. 3730(b)(1), the court relied principally on Passaic Valley Sewerage Commr's v. United States Dept. of Labor, 992 F.2d 474 (3d Cir. 1993), which concluded that internal complaints were protected activity under the Federal Water Pollution Control Act (FWPCA)'s whistleblower provision, in interpreting the employee protection provision of the FCA. The court concluded that Congress had considered other whistleblower provisions such as that found in the FWPCA when enacting the FCA whistleblower provision.

In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit upheld an interpretation of 42 U.S.C. § 5851(a) "as shielding the expression of safety-related concerns to fellow workers, when . . . that expression has a public dimension and fits closely into an extended pattern of otherwise protected activity." The court did not reach the question of whether such an expression made in an isolated or private communication was sufficient to constitute protected activity, but emphasized that the expression of concern must be viewed in context. The court indicated that section 5851 does not protect every act that an employee commits under the auspices of safety, but concluded that section 5851(a)(1)(F) was purposely drafted by Congress is broad terms.

The court indicated recognition that this approach may cause "some difficulty in distinguishing between offering a shield behind which some employees may incite trouble about a host of non-safety issues, including labor disputes, and one behind which well-intentioned employees may raise an alarm against safety hazards." The court, however, concluded that "this is a balance for the Secretary of Labor to attempt to strike in the first instance. The only question is whether the Secretary's balance here, as we have cast it, is a permissible reading of the whistleblower provision. We think it is."

In Stone & Webster, Complainant was a foreman who had raised concerns internally and to the NRC about a new firewatch scheme (checking at the end of a shift to make sure no fires had broken out). Shortly thereafter he was demoted. Complainant then asked for members of his former crew to be gathered, whereupon he told them about his demotion and his opinion that nothing had been done about the firewatch. The workers decided that they would not work until the fire-safety issue had been resolved. The workers were convinced by a manager to return to work, and later the old firewatch procedures were returned to. The next day, however, Complainant was transferred to less desirable work. Complainant's lost back wages amounted to only about $800, but the NRC had imposed a civil fine of $80,000 based on the Secretary of Labor's finding of retaliation.

Distribution of a leaflet at a company picnic raising, inter alia, environmental safety issues, was found in Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), to constitute an internal complaint protected by the FWPCA.

Respondent contended that the distribution of the leaflet should not be considered protected activity because Complainant allegedly was merely making the distribution in an attempt to fabricate a claim for retaliatory discharge already knowing that he was about to be terminated from employment for poor work performance and customer complaints. The Board held, however, that whistleblower protection is not removed merely because a complainant may have other motives for engaging in the protected activity.

In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the ALJ had determined that Complainant's demotion was not an adverse action because the demotion, in the ALJ's eyes, was not discriminatory.

The Eleventh Circuit, however, held that "discriminatory" and "adverse" have distinct meanings. The court wrote that "[a]n 'adverse action' is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Thus, the court affirmed the Secretary's conclusion that Complainant's demotion was an adverse action.

In Verdone v. Northeast Utilities, 97-ERA-27, 28 and 30 (ALJ June 9, 1997), three Complainants had signed documents entitled "General Release and Convenant Not to Sue" which had been presented to them on the basis of assertions of lack of work, reductions in force, or to reduce costs. Each of the Complainants later become convinced that the real reasons they were asked to sign the releases was their protected activity. Complainants filed ERA whistleblower complaints, and the ALJ considered on a motion for summary decision whether the releases prevented recovery for activities of the Complainants predating the execution of the releases.

The ALJ held that a complainant may settle a case at any time, but that such a settlement must nevertheless be approved by the Secretary of Labor. The ALJ focused on whether an inherent requirement of a release to be fair, adequate and reasonable is that it was entered into knowingly and voluntarily. The ALJ concluded that a waiver of ERA claims must be closely scrutinized and that in considering a motion for summary decision, the complete circumstances in which the release was executed must be carefully evaluated. Upon review of the filings of the parties, the ALJ concluded that, as a matter of law, the releases were entered into knowingly and voluntarily, considering Complainants' college level education and work experience, the 45-days for acceptance and 7-day revocation period afforded the signatories, the clarity and lack of ambiguity of the terms of the release, the clear advice at the top of the release "NORTHEAST ADVISES YOU TO CONSULT WITH AN ATTORNEY BEFORE YOU SIGN THIS RELEASE", and finally the fact that each Complainant received an amount to which he was not otherwise entitled as consideration for signing the release.

The ALJ rejected Complainants' argument that the signing was not voluntary because any attempt to negotiate would have been futile. The ALJ observed that there was no evidence that any of the Complainants had attempted to negotiate, and found other indicia that Complainants had knowingly and voluntarily executed the releases.

The ALJ found that the Hobson's choice of being terminated from employment or being terminated and executing a waiver of rights in return for money is, without more, insufficient to support a claim of duress. (the ALJ reserved the issue of threat of blacklisting for a later hearing).

Finally, the ALJ addressed Complainants' position that Respondent falsified the reason for the lay-offs precipitating the releases. The ALJ found that each Complainant suspected prior to signing the releases that Respondent was engaging in retaliatory conduct, but that their alleged subsequent confirmation of that conduct did not negate their waiver of their rights.

In Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB June 27, 1997), the matter had been remanded for a recommended decision on costs and expenses. Earlier, the Board had ordered an award of back pay and an expungement of Complainant's "fair" performance appraisal. Following the ALJ's recommended decision, the parties submitted a letter of agreement to the Board stating that the parties had agreed to a settlement of attorney's fees, costs and expenses. The Board noted that the letter of agreement did not specify whether Respondent had complied with the orders on back pay and expungement, and indicated that it must know this information so that it could determine if the settlement agreement is fair, adequate and reasonable.

The Board also ordered submission of any 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 settlement agreements were entered into between the parties.

The amount of a back pay award affects not only a complainant's individual interest, but also the public interest because if the amount is not fair, adequate and reasonable, other employees may be discouraged from reporting safety violations. Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB June 27, 1997) (Board explaining why it needed information about whether its previous order on back pay had been complied with before it could consider a settlement on attorney's fees, costs and expenses).

See casenote of Verdone v. Northeast Utilities, 97-ERA-27, 28 and 30 (ALJ June 9, 1997), at XVII F above.

In Pittman v. Goggin Truck Line, Inc., 96-STA-25 (ALJ June 16, 1997), Complainant offered into evidence a tape recording and transcription of conversation he had surreptitiously made of a conversation between himself and one of Respondent's managers. Respondent objected based on hearsay, lack of certification by the court reporter, and danger of unfair prejudice.

The ALJ applied 29 C.F.R. § 18.801(d)(2)(iv) to find that the statements by the manger on the tape were not hearsay. That section provides that a statement is not hearsay if it is offered against a party and is a statement by the party's agent or servant concerning a matter within the scope of agency or employment, made during the existence of the relationship. In addition, the ALJ found that such evidence should be admitted, and then considered according to factors relevant to the reliability and probative value of contested evidence.

The ALJ found that the court reporter had, in fact, certified the transcription.

The ALJ, applying 29 C.F.R. § 18.403 which provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by danger of confusion of issues or misleading the judge as trier of fact found that this section still favors the admissibility of relevant evidence, that the burden is on the objecting party, and that exclusion is employed sparingly as it is an extraordinary remedy. The ALJ found that Respondent had not met its burden of showing that inaudible portions of the tape caused the transcribed portions to be so misleading and prejudicial as to outweigh its relevancy.

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB June 11, 1997), Respondent argued in support of a motion for stay of the ALJ's recommended order of reinstatement that it was likely to prevail on the merits because the ALJ had ruled that certain testimony was hearsay and could not be considered to refute Complainant's claim that he was discharged for engaging in protected activity.

The Board found that the ALJ had properly admitted the testimony and judged the weight it was due. While the Board reserved further review on the matter, it concluded that the ALJ's reasoning -- declining to rely on hearsay -- was sound on its face and was not an adequate basis for finding that Respondent would prevail on the merits.

In a STAA whistleblower case, it is not an employer's burden to prove a legitimate, non-discriminatory, non-pretextual reason for its action in order to rebut evidence raising a reasonable inference of retaliatory discharge. Rather, if a complainant presents evidence raising a reasonable inference of retaliatory discharge, the employer need only articulate a non-discriminatory reason for its action. At all times, the complainant had the burden of establishing that the real reason for discharge was discriminatory. See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). Shute v. Silver Eagle Co., 96-STA-19 (ARB June 11, 1997).

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB June 11, 1997), the Board ruled that "[g]oing outside the chain of command to raise safety complaints within the purview of the STAA would not provide a lawful reason for discharge." Slip op. at 2-3 (citations omitted).

In Cook v. Guardian Lubricants, Inc., 95-STA-43 (ARB May 30, 1997), the ALJ on remand ordered Complainant to state whether he sought reinstatement. As of the date of the ALJ's order, Respondent had not offered reinstatement to Complainant. The ALJ interpreted Complainant's response as a waiver of reinstatement, and found that the period of liability for back pay ended when Complainant, in the ALJ's view, waived reinstatement.

The Board, while acknowledging that the ALJ was merely attempting to facilitate the calculation of damages, held that the ALJ's order requiring Complainant to state whether he sought reinstatement "improperly placed the onus on [Complainant] to resolve the reinstatement issue in the absence of an offer by [Respondent]." Slip op. at 3. See Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994) (addressing circumstances when complainant's statement that he would not seek reinstatement, in the absence of an unconditional offer of reinstatement, would be binding).

The Board also found that the statements made by Complainant did not establish whether he did, or would, decline an unconditional offer of reinstatement, and that even if it was a waiver of reinstatement, it was not valid. See Heinrich Motors, Inc. v. N.L.R.B., 403 F.2d 145 (1968); N.L.R.B. v. Seligman and Associates, Inc., 808 F.2d 1155 (1986), cert. denied, 484 U.S. 1026.

Compare Ash v. DSI Transport, 96-STA-21 (ARB June 30, 1997), in which the Board adopted the ALJ's conclusion that Complainant waived reinstatement based on Complainant's stated preference and evidence showing that Complainant is making approximately the same amount of money working for a competitor as he was when wrongfully terminated from employment by Respondent. The Board, however, cautioned litigants to thoroughly review its decision in Cook.

In Michaud v. BSP Transport, Inc., 95-STA-29 (ALJ June 12, 1997), the ALJ recommended a front pay award because Complainant suffered a major depression occasioned by Respondent's wrongful conduct, Complainant's treating physician had advised against a return to work with Respondent for health reasons, and because there were indicia that Complainant would be returning to a work environment where the employer might be trying to get rid of Complainant. The ALJ was influenced by the physician's testimony about the vicious cycle in which Complainant was caught and the sort of modified job that would be necessary to ease Complainant into a stable mental state, and by evidence that Complainant was not responding well to anti-depressant medication and therapy.

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB June 11, 1997), Respondent argued in support of a motion for stay of the ALJ's recommended order of reinstatement that it will be irreparably harmed absent a stay because the company did not need additional drivers in the state where Complainant was employed. The Board concluded that Respondent was sufficiently large that it was unlikely that Respondent would suffer irreparable harm upon the hiring of one additional employee, and that in any event, mere financial loss does not support a finding of irreparable harm. The Board rejected Respondent's claim that it would have to at least temporarily cause one employee to lose his or her job. The Board also noted that pursuant to the STAA it is required to issue a final decision within 120 days of the ALJ's recommended decision.

The Board also took into consideration that reinstatement would result in $500 a week more in pay to Complainant, and therefore a stay would harm Complainant.

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB June 11, 1997), Respondent moved for a stay of the ALJ's recommended order of reinstatement. In weighing the various factors considered in determining whether a stay should be granted, the Board found that the public interest militates against a stay, noting that both Congress and the Department of Labor weighed the public interest in promulgating 49 U.S.C. § 31105(b)(2)(B) and 29 C.F.R. § 1978.109(b), and determined that an ALJ's recommended order of reinstatement should have immediate effect.

In Cook v. Guardian Lubricants, Inc., 95-STA-43 (ARB May 30, 1997), the ALJ's use of calendar weeks, rounded to the closest full week, as the basic computation unit was reasonable in view of Complainant's irregular work schedules. The Board noted that back pay calculations must be reasonable and supported by the evidence of record, but need not be rendered with "unrealistic exactitude." Slip op. at 11-12 n.12.

In Michaud v. BSP Transport, Inc., 95-STA-29 (ALJ June 12, 1997), the ALJ recommended a back pay award from date of termination of employment through and until Respondent pays the award to Complainant, even though Respondent had made an unconditional offer of reinstatement. The ALJ concluded that the rule to be applied was whether an objective reasonable person would have refused the offer of reinstatement. The ALJ found that back pay liability was not tolled in this case because an objective reasonable person would not have accepted Respondent's offer based on the advice of a treating physician that such a position would be too stressful for Complainant and would not make good psychological sense.

Lottery winnings are not deductible from a back pay award. Cook v. Guardian Lubricants, Inc., 95-STA-43, slip op. at 12 n.13 (ARB May 30, 1997).

An employee who has taken reasonable, but unsuccessful, steps to obtain substantially equivalent employment may, after a reasonable period of time, consider other available, suitable employment at a somewhat lower rate of pay. Cook v. Guardian Lubricants, Inc., 95-STA-43 (ARB May 30, 1997).

Excerpts from Cook v. Guardian Lubricants, Inc., 95-STA-43 (ARB May 30, 1997):

The mitigation of damages doctrine requires that a wrongfully discharged employee not only diligently seek substantially equivalent employment during the interim period but also that the employee act reasonably to maintain such employment.... A failure to mitigate damages through the retention of employment will reduce the employer's back pay liability in that the back pay award will be reduced by no less an amount than that which the complainant would have made had he remained in the interim employment throughout the remainder of the back pay period....

* * *

[O]nly if the employee's misconduct is gross or egregious, or if it constitutes a wilful violation of the company rules, will termination resulting from such conduct serve to toll the discriminating party's back pay liability."

Slip op. at 6 (citations and footnote omitted).

The burden to establish that [a complainant] failed to exercise proper care and diligence in the retention of alternative employment is on [the respondent]; any failure of proof on this issue thus operates to [the respondent's] detriment.

Slip op. at 7 (citations omitted).

In Cook, the Board found that Respondent's liability for back pay was not extinguished by Complainant's termination from one employer where the evidence was inconclusive regarding the precise circumstances under which Complainant departed that employment. In regard to another employer that discharged Complainant, the Board found that Complainant had not taken reasonable steps to retain his employment because he had not identified and discussed with that employer his concerns about accepting overweight shipments. There was no evidence that Complainant was asked to violate applicable regulations or that Complainant provided the basis for refusal of assignments. Complainant's failure to even mention the overweight issue with the employer meant that the purposes of the employee protection provision of the STAA were not being served. Compare Hufstetler. v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986). In regard to two other employers from whom Complainant had expressed legitimate concerns prior to termination of employment, the Board found no failure to properly mitigate damages.