WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
July 8,
1998
This newsletter covers materials that became available during the period from April 27, 1998 to
July 8, 1998.
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 AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[N/E Digest IV B 3]
EQUITABLE TOLLING; COMPLAINANT DID NOT "MISTAKENLY"
FILE IN THE WRONG FORUM
In Wood v. Lockheed Martin Energy
Systems, 97-ERA-58 (ARB May 14, 1998), the ALJ had concluded that the
complaint filed with DOL was untimely, and then considered whether equitable tolling applied
because Complainant had filed a timely complaint with DOE. Since there was no evidence that
Complainant filed with DOE by mistake, he concluded that equitable tolling was not applicable.
Rather, it appeared that Complainant had become dissatisfied with the DOE process and
therefore decided to file with DOL. The ARB quoted this portion of the ALJ's recommended
decision; however, Complainant had petitioned for voluntary dismissal of the DOL complaint
before the ARB so that he could pursue his DOE complaint. Thus, the ARB granted
Complainant's motion for voluntary dismissal and did not rule expressly on the ALJ's holding on
the timeliness issue.
[N/E Digest V D]
APPLICATION OF OALJ RULES OF PRACTICE TO EVENTS OCCURRING PRIOR
TO OALJ GAINING JURISDICTION
In Staskelunas v. Northeast Utilities
Co., 98-ERA-8 @ n.5 (ARB May 4, 1998), the ARB declined to adopt the ALJ's
use of 29 C.F.R. Part 18 to calculate constructive receipt of the OSHA determination letter by
Complainant. The ARB indicated that OALJ's rules of practice should not be applied to events
taking place prior to OALJ's gaining jurisdiction over the matter.
[N/E Digest VI E]
TIMELINESS OF HEARING; NEW REGULATIONS REQUIRE FILING WITHIN
FIVE BUSINESS DAYS; OLD REGULATIONS REQUIRED FILING WITHIN FIVE
CALENDAR DAYS
"Effective March 11, 1998, the filing deadline in ERA whistleblower cases was
changed to require filing within five business days of the receipt of the OSHA
determination letter. 63 Fed. Reg. 6622 (Feb. 9, 1998), to be codified at 29 C.F.R.
§24.4(d)(2)." DeGostin v. Bartlett
Nuclear, Inc., 98-ERA-7 @ n.4 (ARB May 4, 1998); Staskelunas v. Northeast Utilities Co.,
98-ERA-8 @ n.4 (ARB May 4, 1998). The regulation in effect in DeGostin
and Staskelunas, however, provided that a hearing must be requested within
five calendar days.
[N/E Digest VI E]
TIMELINESS; CASE DOCKETED PREMATURELY
In DeGostin v. Bartlett Nuclear,
Inc., 98-ERA-7 (ARB May 4, 1998), after the ALJ issued a notice of hearing, he
discovered that the file did not contain a request for hearing by Complainant, and issued an order
to show cause why the case should not be dismissed. Complainant's counsel responded that his
client had received the ALJ's notice of hearing and order to show cause before receiving the
OSHA determination letter (Complainant had not picked up the certified determination letter,
and apparently did not receive it until OSHA re-sent it by regular mail). The ARB accepted the
ALJ's recommendation of dismissal because, even construing the time period generously (from
the Monday after Complainant actually received the OSHA determination letter), and assuming
that Complainant's counsel's response to the order to show cause was a hearing request, it was
still untimely. The ARB also noted a lack of basis in the record for tolling the time limit other
than Complainant's receiving documents and letters out of chronological order.
[Editor's note: The situation in DeGostin and
Staskelunas was probably caused by premature docketing of the cases by
OALJ. Generally, cases are not docketed and assigned to ALJs until a hearing request is
received from the complainant or the respondent. Here, the cases probably would have been
removed from the docket as erroneously docketed had the ALJ not already issued notice of
hearings before the errors were noticed.]
[N/E Digest VI E]
TIMELINESS OF HEARING REQUEST; PERIOD BEGINS WITH COMPLAINANT'S
ACTUAL RECEIPT OF OSHA DETERMINATION LETTER
In Staskelunas v. Northeast Utilities
Co., 98-ERA-8 @ n.5 (ARB May 4, 1998), the ARB declined to adopt the ALJ's
use of 29 C.F.R. Part 18 to calculate constructive receipt of the OSHA determination letter by
Complainant. The ARB indicated that OALJ's rules of practice should not be applied to events
taking place prior to OALJ's gaining jurisdiction over the matter. Thus, applying the
whistleblower regulations at 29 C.F.R Part 24, the ARB ruled that the time period must be
calculated based on a complainant's actual receipt of the OSHA determination letter. The ARB
held that the ALJ should determine the actual date of receipt, and insure that there is evidence of
that date contained in the record. The ARB noted, however, that "[i]f there is a dispute as
to the actual date of receipt, the complainant bears the burden of establishing that his or her
request for hearing was timely filed.
[N/E Digest VIII A 2 c]
ALJ'S RESPONSIBILITY TO ISSUE PRELIMINARY ORDER IN ERA CASE
In Overall v. Tennessee Valley
Authority, 97-ERA-53 (ARB Apr. 27, 1998), the ARB remanded the case
(without holding the petition for review under abeyance) where the ALJ had found that
Respondent violated the ERA, and recommended that the Secretary issue an order providing for
reinstatement and other relief. The ARB noted that regulatory amendments to 29 C.F.R. Part 24,
which were effective March 11, 1998, specify that the ALJ who issues a recommended decision
that the complaint has merit is also to issue a preliminary order granting relief under Section 211.
63 Fed. Reg. 6624 (Feb. 19, 1998), to be codified at 29 C.F.R. §24.7 (c)(2).
[N/E Digest VIII B 3]
INTERLOCUTORY APPEALS DISFAVORED
In Shelton v. Oak Ridge National
Laboratory, 95-CAA-19 (ARB June 22, 1998), the ARB denied Complainant's
request for reversal of an order issued by the Chief ALJ finding that Respondent's request for a
hearing was timely. The ARB characterized the request as an interlocutory appeal, and found
that Complainant had not offered any reason to depart from precedent disfavoring such appeals.
The ARB noted that Complainant could raise arguments about the timeliness of Respondent's
request for a hearing in her brief challenging the ALJ's recommended decision.
[N/E Digest VIII C 1]
INITIAL CLAIM FOR VIOLATION OF ERA WHISTLEBLOWER PROVISION
SHOULD BE PRESENTED TO DOL RATHER THAN FEDERAL DISTRICT COURT
In United States v. Regan, 1998 WL 341815 (N.D. Ill. June 12,
1998)(unpublished), the plaintiff claimed that he was entitled to bring a whistleblower claim
under 42 U.S.C. § 5851 based on the allegation that the defendant drove the plaintiff out of
the nuclear industry. The court dismissed this claim because, inter alia, the court's
jurisdiction is limited to review of certain orders of the Secretary of Labor. The court wrote:
"Initial claims for violations of § 5851 are to be presented to the Secretary of Labor
with court review going directly to the Court of Appeals. 42 U.S.C. §§ 5851(b), (c);
[Kahn v. Secretary of Labor, 62 F.3d 271, 275 (7th Cir. 1995)]."
[N/E Digest IX D 2]
MOTION TO REOPEN; EVIDENCE MUST BE NEW AND MATERIAL, AND
PREVIOUSLY NOT READILY AVAILABLE
In Varnadore v. Oak Ridge National
Laboratory, 92-CAA-2 and 5, 93-CAA-1, 94-CAA-2 (ARB May 14, 1998),
Complainant moved to reopen the record to include an excerpt from a hearing involving another
complainant in another case. The ARB denied the motion, finding that this testimony was not
"new and material evidence [which became] available and was not readily available."
Slip op. at 4. See 29 C.F.R. § 18.54(a). The motion came after a three-judge panel
of the Sixth Circuit had affirmed the ARB; Complainant argued that there was no way to know
that an issue relating to the testimony would become the lynchpin of the case. The ARB
reviewed the record and found that it was impossible to conclude that the issue could not have
been foreseen. In a footnote, the ARB also questioned the relevancy of the testimony sought to
be received.
[N/E Digest XI A 2 c]
CONTRIBUTING CAUSE; MERELY BEING ON NOTICE OF COMPLAINANT'S
OBJECTIONS TO CERTAIN WORK INSUFFICIENT TO ESTABLISH RETALIATORY
MOTIVE
"Under the ERA, 'a determination that a violation has occurred may only be made if
the complainant has demonstrated that protected behavior or conduct was a contributing factor' in
the adverse action taken against the complainant. 63 Fed Reg. 6614, 6623 (Feb. 9, 1998), to be
codified at 29 C.F.R. §24.7(b)." Dobreuenaski v. Associated Universities,
Inc., 96-ERA-44 @ 10-11 (ARB June 18, 1998). In
Dobreuenaski, Complainant had refused to enter the basement of a building
where a wastewater transfer was scheduled to take place to assist turning two or three valves.
Despite the explanation of the safety of the assigment by a health physicist and the offer of a
respirator, Complainant refused the assignment. The building had been the subject of safety
complaints by Complainant. The next day, Complainant was issued a verbal warning for the
work refusal. The day after the warning, a meeting was scheduled to discuss clean-up and
decontamination activities of the building's basement. Complainant refused to participate in
either the planning or execution of any such activities.
The ALJ concluded that Complainant's demotion was unlawful because, although
Employer did not know about Complainant's reluctance to enter the basement on the day of the
wastewater transfer, it did on the day of the meeting to plan clean-up and decontamination.
The ARB found that the ALJ correctly found that the work refusals had been major
reasons for the demotion, but that the ALJ erred in holding that the second assignment had been
made as part of a plan to downgrade Complainant for engaging in protected activities. The ARB
found that Complainant had not established by a preponderance of the evidence that
Respondent's actions were retaliatory, pointing to evidence that Respondent had diligently
attempted to assuage Complainant's concerns only to be rebuffed. The ARB concluded that the
evidence showed that Respondent's decision to demote Complainant was based solely on
Complainant's work refusal, and pointed to evidence that Respondent did not fire Complainant
outright as it could have under the collective bargaining agreement, but conscientiously
attempted to ally his concerns and to reassign him so that he would not have to do work he
rejected. The ARB also observed that Respondent made timely and thorough investigations of
Complainant's formal safety complaints. Finally, the ARB found that the ALJ's analysis was
based on the faulty assumption that Complainant's safety concerns permitted him to reject
summarily the basement cleaning assignment, citing decisions to the effect that "Although
a work refusal may be protected under the ERA if the complainant has a good faith, reasonable
belief that working conditions are unsafe or unhealthful, it loses its protection after the perceived
hazard has been investigated by responsible management officials and, if found safe, is
adequately explained to the employee." Id. at 12 (citations omitted).
[N/E Digest XII B 2 d]
PROTECTED ACTIVITY; PARTICIPATING IN TELEVISION REPORT
Participating in a television report on alleged leakage of radioactive waste is protected
activity under the ERA's whistleblower provision. Dobreuenaski v. Associated Universities,
Inc., 96-ERA-44 @ 9 (ARB June 18, 1998).
[N/E Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; ANIMOSITY FROM CO-WORKERS
In Dobreuenaski v. Associated Universities,
Inc., 96-ERA-44 (ARB June 18, 1998), Complainant had released information to
a television station and participated in a negative report about Respondent. The ARB, in
affirming the ALJ's recommendation that Complainant had not proven a constructive discharge
by a preponderance of the evidence, adopted the ALJ's finding that Respondent could not be
fairly:
held responsible for any isolation, ostracism, or scorn to which Complainant
was subjected by his co-employees. Many of these co-employees viewed the T.V.
coverage as unfair, and threatening of their jobs without, and independent from, any
encouragement from Respondent's management. This record fails to establish that
Respondent independently or otherwise orchestrated and/or originated, any such adverse
peer response.
Id. @ 13 (quoting ALJ's Recommended Decision).
[N/E Digest XIV B 2]
PRINCIPAL OF ANOTHER COMPANY
In United States v. Regan, 1998 WL 341815 (N.D. Ill. June 12,
1998)(unpublished), the plaintiff claimed that he was entitled to bring a whistleblower claim
under 42 U.S.C. § 5851 based on the allegation that the defendant drove the plaintiff out of
the nuclear industry. The court dismissed this claim because, inter alia, section 5851
limits protection to employees, and plaintiff did not claim that he was an employee of the
plaintiff. The decision indicates that the plaintiff was a principal in a company that had a
tax-related dispute with the defendant.
[N/E Digest XVI E 3 a]
ATTORNEY'S FEES; USE OF CURRENT HOURLY RATES; REJECTION OF
INTEREST
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the ALJ recommended that attorneys fees
be set at the rate in effect at the time the rate is established, rather than those in effect at the time
the services were performed, citing Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983).
Because the Complainant's counsel receives a benefit for delay based on use of the current hourly
rate, the ALJ recommended that interest should not be awarded on the fee award.
[N/E Digest XVI E 3 d iv]
ATTORNEY'S FEES; MEETING WITH REPORTER
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB July 6, 1998), Respondent objected to the billing by
Complainant's attorney for a meeting with a reporter. The ARB found that without further
explanation, such a meeting appeared to be ancillary to the legal proceedings necessary to pursue
the litigation in this case, and therefore the charge should be rejected.
[N/E Digest XVI E 3 d v]
ATTORNEY'S FEES; SET-OFF FOR MONIES RECEIVED IN EARLIER
SETTLEMENT
In Macktal v. Brown & Root,
Inc., 86-ERA-23 (ALJ Mar. 30, 1998), the matter was on remand from the ARB
for a calculation of attorney's fees. The ARB had dismissed Complainant's case on the merits,
but found that Complainant was entitled to attorneys fees because he was successful in litigation
of an issue involving the legality of a settlement from earlier in the proceeding. In making his
recommendation on attorney's fees, the ALJ concluded that Respondent was entitled to a set-off
for the amounts it had paid for attorney's fees in the earlier settlement, citing Oubre v.
Entergy Operations, Inc., 118 S.Ct. 838 (1998) and Wolf v. Frank, 477 F.2d 467,
480 (1973).
[N/E Digest XVII A]
SETTLEMENT AT PRE-ADJUDICATORY STAGE; NO REQUIREMENT THAT
SECRETARY ENTER INTO AGREEMENT TO TERMINATE PROCEEDING
Where the parties agree to a settlement before the investigatory agency (Wage and Hour or
OSHA) renders its determination, and before a request for a hearing is made by one of the
parties, there is no requirement that the Secretary of Labor enter into the settlement to terminate
the proceeding.
[N/E Digest XVIII C 6]
DISMISSAL; FAILURE TO RESPOND TO ALJ'S ORDER TO SHOW CAUSE
In Jackson v. Northeast Utilities
Co., 98-ERA-6 (ARB June 22, 1998), the ALJ had issued an order to show cause
because the record did not reveal that Complainant had ever filed a request for a hearing
following issuance of OSHA's determination letter. Complainant did not respond, and the ALJ
recommended dismissal both because Complainant did not file a request for a hearing and
because Complainant did not respond to the order to show cause. The ARB affirmed the ALJ on
the ground of Complainant's failure to respond to the order to show cause.
To the same effect: Staskelunas v.
Northeast Utilities Co., 98-ERA-8 (ARB May 4, 1998)(Complainant's counsel
only submitted a status inquiry letter after the time period expired for responding to the order to
show cause).
In Jackson v. Protein
Express, 95-STA-38 (ALJ Mar. 9, 1998), the ALJ explicitly noted in his
recommended decision on remand that the ARB had ignored his credibility findings that all
witnesses had been credible except Complainant. On review, in Jackson v. Protein Express, 95-STA-38
@ 2 (ARB May 29, 1998), Respondent argued that the ARB's remand order should be reversed
because the ARB had failed to treat the ALJ's findings of fact as conclusive as required by 29
C.F.R. § 1978.109(c)(3). The ARB treated Respondent's argument as a motion for
reconsideration, and held that it had not misapplied the regulation because "there were two
crucial points in the original recommended decision of the ALJ on which he either did not make
a specific finding or with respect to which he did not apply the appropriate legal test."
[STAA Digest II H 4 a]
FINDINGS OF FACT; ALJ'S FINDINGS CONCLUSIVE IF SUPPORTED BY
SUBSTANTIAL EVIDENCE
In Brink's, Inc. v. Herman,
No. 96-4162 (2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4), the
Second Circuit reviewed the Department of Labor STAA whistleblower regulations at 29 C.F.R.
§ 1978.109(c)(3), and found that if there was substantial evidence to support the ALJ's
findings, the Secretary of Labor's refusal to treat them as conclusive was contrary to that
regulation. The court noted that this is so even if the Secretary's decision was also based on
substantial evidence.
The court found that the ALJ's finding that there was no meaningful relationship between
Complainant's complaints at a "speak-out" session and his termination was fully
supported by the record of the hearing. The Secretary had asserted that the ALJ had failed to
address the "complaint clause" issue, and therefore had to make his own findings.
The court, however, found that although the ALJ had not expressly referred to the complaint
clause, he had considered directly the question that arises under this clause -- whether
Complainant was fired because of the complaints he had made. The court, therefore, vacated the
Secretary's findings, and directed entry of an order based on the ALJ's "well-supported
findings...."
The court also reversed the Secretary in regard to findings made by the ALJ under the
"because" clause of the "work refusal" provision of the STAA, holding
that substantial evidence supported the ALJ's finding that, at least following Respondent's offer
to cure the matter complained about, Complainant's safety concern was not objectively
reasonable. The court similarly reversed the Secretary in regard to another because clause issue.
[STAA Digest II I]
MOTIONS FOR RECONSIDERATION; ARB DISFAVORS
The ARB stated in Jackson v. Protein
Express, 95-STA-38 @ 2 (ARB May 29, 1998), that motions for reconsideration
are generally disfavored, citing INS v. Doherty, 502 U.S. 314, 323 (1992); Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (Reconsideration should be granted
only
to "correct manifest errors of law or fact or to present newly discovered evidence.").
In Jackson, however, the ARB did reconsider to clarify its holding in its
earlier Remand Order.
[STAA Digest IV A]
GENERAL BURDENS OF PROOF AND PRODUCTION
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), the First Circuit recited the generally accepted statement of
burdens of proof and production in an STAA whisteblower proceedings:
A prima facie case of unlawful termination under
the STAA requires a showing that the employee engaged in protected activity, that the
employee was subjected to adverse employment action, and that there was a causal
connection between the protected activity and the adverse action. See Moon, 836
F.2d at 229. Clean Harbors took adverse employment action against Dutkiewicz, but
contests that Dutkiewicz engaged in any protected activity, and that there was a causal
link between any protected activity and the adverse employment action.
The familiar burden-shifting analysis employed under Title
VII has also been employed under the STAA. Where a complainant has made out a prima
facie case of retaliatory discharge, the employer may rebut that showing with evidence of
a legitimate, non-retaliatory reason for the discharge. The burden then shifts back to the
complainant to prove that the proffered reason is pretext for unlawful retaliation. See
id. (adapting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), to a STAA claim). Where evidence of a dual motive
exists, i.e., where there are legitimate reasons for a discharge in addition to the unlawful
reasons, the employer bears the burden of establishing by a preponderance of the
evidence that it would have taken the adverse employment action in the absence of the
employee's protected activity. Cf.Price Waterhouse v. Hopkins,
490 U.S. 228, 242 (1989). Both parties have accepted this as the standard and we do not
reexamine it.
1998 WL 293060 *9.
[STAA Digest IV A]
GENERAL BURDENS OF PROOF AND PRODUCTION
In Byrd v. Consolidated Motor
Freight, 97-STA-9 @ 4-5 (ARB May 5, 1998), the ARB summarized the burdens
of proof and production in STAA whistleblower cases:
To prevail on a whistleblower complaint, a
complainant must establish that the respondent took adverse employment action because
he engaged in protected activity. A complainant initially may show that a protected
activity likely motivated the adverse action. Shannon v. Consolidated
Freightways, Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op. at
5-6. A complainant meets this burden by proving (1) that he engaged in protected
activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse
employment action, and (4) the existence of a "causal link" or nexus,"
e.g., that the adverse action followed the protected activity so closely in time as to justify
an inference of retaliatory motive. Shannon, slip op. at 6; Kahn v. United
States Sec'y of Labor, 64 F.3d 261, 277 (7th Cir. 1995). A respondent may rebut this
prima facie showing by producing evidence that the adverse action was motivated by a
legitimate nondiscriminatory reason. The complainant must then prove that the proffered
reason was not the true reason for the adverse action and that the protected activity was
the reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
506-508 (1993).2/
2/ Although the "pretext" analysis permits a shifting of the burden of
production, the ultimate burden of persuasion remains with the complainant throughout
the proceeding. Once a respondent produces evidence sufficient to rebut the
"presumed" retaliation raised by a prima facie case, the inference
"simply drops out of the picture," and "the trier of fact proceeds to
decide the ultimate question." St. Mary's Honor Center, 509 U.S. at
510-511. See Carroll v. United States Dep't of Labor, 78 F.3d 352, 356 (8th Cir.
1996) (whether the complainant previously established a prima facie case
becomes irrelevant once the respondent has produced evidence of a legitimate
nondiscriminatory reason for the adverse action).
[STAA Digest IV A 2 c]
CAUSATION; CUSTOMER COMPLAINTS
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), the court declined to disturb the agency's findings that
Complainant was fired, at least in part based on protected activity, even though Respondent
claimed that Complainant was fired because of customer complaints. The court noted that
Respondent did chose to rely only on the testimony of its customer service manager, and
observed that "[a] company may reasonably choose not to impose on its customers to
appear as witnesses at trial about complaints they have made, but it does so at its own risk where
the customer complaints may give the appearance of being based on the employee's refusal to
violate the law." 1998 WL 293060 *11. The court noted Respondent's argument that it
was not logical for it to do what Complainant claimed it did. The court, however, observed that a
failure to do what is ultimately in the company's interest (avoidance of a lawsuit for retaliatory
discharge) may be explained by a divergence of objectives between a corporation and its
employees, who might perceive the interest as satisfaction of a complaining customer.
[STAA Digest IV A 2 d]
INTERNAL COMPLAINTS; ADEQUATE NOTICE TO EMPLOYER
legitimate due process concerns that the internal communications to the
employer must be sufficient to give notice that a complaint is being filed and thus that the
activity is protected. In the absence of such notice, the beneficial purposes of the act
cannot be accomplished. Clearly there is a point at which an employee's concerns and
comments are too generalized and informal to constitute "complaints" that
are "filed" with an employer within the meaning of the STAA. The risk of
inadequate notice to an employer that the employee has engaged in protected activity is
greater when the alleged protected complaints are purely oral.
1998 WL 293060 * 10. In the instant case, however, the record established that
Complainant's "superiors were well-aware of his fastidious compliance with safety
regulations and his oral and written refusals to accommodate this practice for the sake of
customer satisfaction." Id.
[STAA Digest IV B 2 e]
ARTICULATION OF LEGITIMATE REASONS FOR SECOND DISCHARGE;
FAILURE TO FOLLOW CHAIN OF COMMAND
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), Complainant had been rehired but placed on a short lease,
required to follow a strict chain of command. He was discharged for three instances of
purportedly violating that chain of command. The court agreed that there was substantial
evidence to support the agency's implicit finding that Complainant was placed on a rigid chain of
command, unlike other employees, precisely because of Respondent's frustration with
Complainant and his insistence on strict compliance with safety. The court also agreed with the
agency that it was significant that Complainant had received no warnings prior to the second
discharge, noting that Respondent's excuse that it had no time to issue warnings was weak
because chain of command "violations" would hardly trigger emergencies.
[STAA Digest V A 4 a]
ELEMENTS OF "BECAUSE" CLAUSE OF "WORK
REFUSAL" PROVISION
In order to establish a complaint under STAA § 405(b), 49 U.S.C. app. 2305(b), the
"because" clause of the "work refusal" provision, a complainant must
establish that (1) he or she refused to operate the vehicle because he or she was apprehensive of
an unsafe condition of the vehicle, (2) his or her apprehensive was objectively reasonable, (3) he
or she sought to have the respondent correct the problem, and (4) the respondent failed to do so.
Brink's, Inc. v. Herman, No. 96-4162
(2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4).
[STAA Digest V A 5]
PROTECTED ACTIVITY; REASON FOR WORK REFUSAL MUST BE SAFETY
RELATED
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ found that certain safety
defects were present in a truck Complainant refused to drive, and therefore Complainant engaged
in protected activity. The ARB held that simply because Complainant refused to drive a truck
that had safety defects did not establish protected activity. Where, as the ALJ found, the work
refusal was not based on a concern for safety, but solely for non-safety related reasons, a
complainant does not engage in protected activity.
[STAA Digest V A 6]
PROTECTED ACTIVITY; WORK REFUSAL VERSUS COMPLAINT
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ erred in concluding that
certain incidents where Complainant alleged that he had complained about the condition of the
trucks he was to drive on those dates was a "work refusal" analyzed pursuant to
section 31105(a)(1)(B). The ARB concluded that because Complainant did actually drive those
trucks, the complaint was more properly analyzed under the "complaint" provision of
section 31105(a)(1)(A).
[STAA Digest V B 1 a]
INTERNAL COMPLAINT
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), the First Circuit held that the STAA, 49 U.S.C. §
31105(a)(1)(A), protects an employee who has filed purely intracorporate complaints about
alleged violations of federal law. The court relied on the fact that the statutory language is
susceptible to more than one reading; that Congress reenacted the STAA without change in the
fact of long-standing administration interpretation of the STAA and similar language in other
statutes to include internal complaints; that this provision is "the sort of interstitial law
making which Congress left to the agency...."; and that DOL's policy choice in interpreting
the statute to include internal complaints "is eminently reasonable." 1998 WL
293060 * 7 (citation omitted).
[STAA Digest V B 1 c iii]
PROTECTED ACTIVITY; COMPLAINT TO SUPERVISOR IS PROTECTED EVEN IF
SUCH COMPLAINTS WERE IN NORMAL COURSE OF BUSINESS
In Zurenda v. J&K Plumbing & Heating
Co. Inc., 97-STA-16 (ARB June 12, 1998), the ALJ erred in holding that although
Complainant had engaged in protected activity under STAA when he complained to higher level
management about certain safety issues related to the trucks, Complainant's complaints to his
own supervisor about safety problems did not "rise to the level of protected activity, as the
normal course of business was for Complainant to inform his supervisor as to any repairs that
needed to be made." The ARB held that under the STAA "a safety related complaint
to any supervisor, no matter where that supervisor falls in the chain of command, can be
protected activity." Id. @ 5.
[STAA Digest V B 2 a iv]
"ANTICIPATORY FATIGUE"
In Byrd v. Consolidated Motor
Freight, 97-STA-9 (ARB May 5, 1998), Complainant refused to take a sleeper
run because he believed that he would become too fatigued to drive safely; at that time, however,
he was well rested and ready to drive other runs; he refused simply because he believed he would
not get enough rest in the cab. The ARB found that Complainant, who was well rested, was not
reasonably apprehensive about public safety, citing evidence of record to the effect that he could
have stopped the truck and rested without repercussion. The ARB cited Brandt v. United
Parcel Service, 95-STA-26 (Sec'y Oct. 26, 1995), for the standard for evaluating a claim of
anticipatory fatigue.
[STAA Digest V B 2 a iv]
FATIGUE; EMPLOYEE HAD ADEQUATE TIME FOR REST
In Ass't Sec'y & Porter v. Greyhound Bus
Lines, 96-STA-23 (ARB June 12, 1998), the ARB deferred to an arbitration ruling
that Respondent did not violate the STAA whistleblower provision when it discharged
Complainant for refusing to work. The arbitrator had found that Complainant had adequate time
(three days) to be rested and available for work. The ARB agreed with the ALJ that "the
arbitration decision dealt adequately with the factual issues in the case and reached an outcome
that was not repugnant to the purpose of the STAA." Id. @ 2. The
ARB stated that
Simply claiming that he was "sleepy" when called by Greyhound
... is not enough to show that Complainant reasonably believed he was too fatigued to
take the assignment. It is also not sufficient to show that an actual violation of the fatigue
rule would have occurred if Complainant had accepted the assignment. 49 U.S.C.A.
§31105(a)(1)(B)(i). ... We agree with the ALJ that the STAA does not protect an
employee who, through no fault of the employer, has made himself unavailable for work.
Id. @ 3.
[STAA Digest IX B 1]
COMPENSATORY DAMAGES; INTEREST ON PURCHASE OF CAR
A complainant is not entitled to recover as compensatory damages interest on an
automobile loan where the automobile was purchased prior to his unlawful termination. Jackson v. Protein Express, 95-STA-38
@ 5 (ARB May 29, 1998).
[STAA Digest IX C]
ATTORNEY'S FEES; PREPARATION OF DISCOVERY AND PROCEDURAL
ORDERS ON WHICH COMPLAINANT WAS NOT SUCCESSFUL
In Jackson v. Protein
Express, 95-STA-38 (ALJ Mar. 9, 1998), Respondent objected to an award of
attorney's fees for time spent on a motion for default judgment and a motion to compel because
the ALJ denied award of these costs in an earlier recommended decision, and the ARB had not
reversed this ruling. The ARB in Jackson v.
Protein Express, 95-STA-38 (ARB May 29, 1998), disagreed, holding that
"[t]ime spent in preparation of discovery and procedural motions is a cost reasonably
incurred in bringing the complaint and is recoverable under the statute."
Id. @ 5.
[Editor's note: The ALJ's ruling had been based on his finding that DOL does not
have the authority to impose costs as a sanction. Complainant had requested attorney fee costs
for the time spent attempting to obtain compliance with discovery requests, and an ALJ order, as
a penalty, pursuant to Rule 37 of the Federal Rules of Civil Procedure, for Respondent's alleged
willful noncompliance.]
[STAA Digest X A 3]
SETTLEMENTS; IN STAA ADJUDICATORY SETTLEMENTS, ALJ'S ORDER
APPROVING IS FINAL
Pursuant to 29 C.F.R. § 1978.111(d)(2), an ALJ has the authority to approve an
adjudicatory settlement. If approved, the ALJ's order is the final departmental action. Fisher v. ABC Trailer Sales & Rental,
Inc., 97-STA-20 (ARB May 29, 1998).
[STAA Digest XIII C]
DEFERRAL TO ARBITRATION PROCEEDING; STANDARDS
"The standards in STAA cases for deferral to the outcome of other proceedings are
that those proceedings dealt adequately with all factual issues, that the proceedings were fair,
regular and free of procedural infirmities, and that the outcome of the proceedings was not
repugnant to the purpose and policy of the STAA. 29 C.F.R. §1978.112(c) (1996)."
Ass't Sec'y & Porter v. Greyhound Bus
Lines, 96-STA-23 @ 2 (ARB June 12, 1998).
