of the ARB reviewed the language of the CAA and the TSCA, and examined the
relevant legislative history of the CAA and the TSCA, to provide guidance to the ALJ on remand
as to what health and safety complaints may touch on concern for the environment and public
health and safety that are the focus of these acts. The member noted that the CAA states that its
purpose is "to protect and enhance the quality of the Nation's air resources so as to promote
the public health and welfare and the productive capacity of its population." 42 U.S.C.
§7401(b)(1) (1988), while the TSCA states that its primary purpose is to assure that
technological innovation and commerce in hazardous "chemical substances and mixtures
do not present an unreasonable risk of injury to health or the environment." 15 U.S.C.
§2601(b)(3) (1988). The member wrote that "[t]o that end, the TSCA authorizes not
only the control of chemical substances but also authorizes the development of data to provide a
basis for evaluating the hazards posed by particular chemicals. The chemical risk assessments
that are developed under the TSCA are also relied on by the EPA in determining the controls to
be set on specific chemicals under the CAA. See 53 Fed. Reg. 51698, 51707 (1998)
(EPA, 40 C.F.R. Part 704, final rule)." Slip op. at 18. For additional detail, see the slip op.
at 18-23.
See also the Melendez casenote under XII D 1 B as to why TSCA record
keeping requirements may implicate protected activity where a complainant is asking question
about his or her personal exposure and health concerns.
[Nuclear & Environmental Digest II B 1 b]
NEW COMPLAINT OF BLACKLISTING; ARB REMANDS TO OSHA FOR
INVESTIGATION
In Duncan v. Sacramento Metropolitan Air Quality Management
District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB June 13, 2000), Complainant wrote to the Secretary of Labor complaining that Respondent had posted information concerning
the ALJ's recommended decision and order on its website, and this posting constituted
blacklisting. Complainant indicated that he had faxed a copy of his complaint to the San
Francisco OSHA office, but received no reply. The Executive Director of the Labor
Department's Office of Adjudicatory Services responded on behalf of the Secretary, informing
Complainant that he could raise this issue formally with the ARB because of the pending appeal
of the ALJ's decision. Complainant subsequently filed with the ARB a motion to review the new
complaint of retaliation-blacklisting. The ARB found that this new complaint was not currently
in a posture for review by the ARB, and remanded the complaint to OSHA for an investigation.
[Nuclear & Environmental Digest II C 2]
COMPLAINT; LETTER FILED WITH SECRETARY OF LABOR RATHER THAN
OSHA
In Duncan v. Sacramento Metropolitan Air Quality Management
District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB June 13, 2000), the ARB
noted that a complaint letter filed with the Secretary of Labor would be sufficient to constitute a
complaint pursuant to section 7622(b)(1) of the CAA, 42 U.S.C. 7622(b)(1)(1994), and 29
C.F.R. 24.3(d), even if not filed with OSHA.
[Nuclear & Environmental Digest III B 1]
TIMELINESS OF COMPLAINT; NEXT BUSINESS DAY RULE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB applied the time computation provision found in the
OALJ Rules of Practice and Procedure at 29 C.F.R. §18.4(a), to find that time deadlines
under 29 C.F.R. Part 24 that fall on a weekend day or a Federal holiday are automatically
extended to the next business day.
[Nuclear & Environmental Digest III B 3]
REQUEST FOR HEARING; TIMELY BUT NOT VIA MEANS SPECIFIED IN
REGULATIONS
In Lazur v. U.S. Steel-Gary Works, 1999-ERA-3 (ALJ May 18, 2000),
the ALJ concluded that a Complainant's request for hearing, if timely received by the Office of
Administrative Law Judges, would not be dismissed merely because the Complainant served the
request on the OALJ and the other parties by regular mail rather than one of the methods
specified in 29 C.F.R. 24.4 (fax, hand delivery or next-day delivery service). The ALJ concluded
that as long as the request actually was timely received, it did not matter that regular mail was
used.
[Nuclear & Environmental Digest III B 3]
TIMELINESS; TESTIMONY OF ATTORNEY THAT COMPLAINT LETTER HAD
BEEN SENT BY REGULAR MAIL
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB adopted the ALJ's finding that the testimony of
Complainant's attorney that the complaint letter to ESA had been sent by regular mail on the
Friday before the Monday the complaint was due to be filed, together with documentary evidence
showing receipt by ESA on the next Tuesday, established that the complaint was timely filed.
The ARB declined to accept Respondent's contention that the attorney's testimony could not be
relied upon because the letter had not been sent by certified mail, with return receipt service.
[Nuclear & Environmental Digest VII A 3]
DEFAULT JUDGMENT; FAILURE TO PROVIDE HIGHLY PROBATIVE EVIDENCE
DURING DISCOVERY
In Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4
(ALJ June 29, 2000), it became apparent, post-hearing, that Respondent had failed to provide
highly probative evidence during discovery in regard to Complainant's allegation of an improper
relationship between Respondent and Complainant's former counsel. The ALJ found that
reopening the record was not a viable option, and in view of the egregious nature of Respondent's
failure to respond fully to Complainant's discovery requests, ruled that the appropriate remedy
was a ruling adverse to the non-complying party as provided for at 29 C.F.R. §
18.6(d)(2)(ii). Thus, the ALJ held that Respondent interfered with the attorney-client
relationship between Complainant and his former counsel that Respondent paid the former
counsel to aid it in connection with the whistleblower case before the ALJ. Similar discovery
failures resulted in the ALJ finding that Respondent interfered with Complainant's filing of a
workers' compensation claim.
This case arose in under a complex set of circumstances. Essentially, Complainant's case
was grounded in an allegation that Respondent's actions during implementation of a settlement of
an earlier whistleblower case constituted a new whistleblower action. The ALJ found either no
adverse action or no animus for most of Complainant's allegations -- but granted a default
judgment on the attorney interference and worker's compensation interference claims because of
the serious discovery failures. One term of the settlement agreement provided for Respondent's
payment of Complainant's attorney's fees for services provided in relation to implementation of
the settlement agreement. The information turned over post-hearing indicated that, without
Complainant's knowledge, Respondent had paid Complainant's former attorney $281,115.50 in
the year following the execution the settlement agreement.
[Nuclear & Environmental Digest VII C 3]
LAW OF THE CASE; DISTINCTION BETWEEN STATING A CLAIM UNDER THE
CAA, AND FINDING OF PROTECTED ACTIVITY UNDER THE CAA
In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y
July 3, 1995), the Secretary of Labor in considering whether the ALJ had properly dismissed the
complaint for failure to state a claim under the Clean Air Act wrote:
[T]he complaint concerned astronauts being exposed, within the space capsule,
to ethylene oxide and freon. On first impression the complaint appears concerned
with occupational, rather than public, safety and health. Ethylene oxide and freon,
however, are precisely the types of substances reasonably perceived as subject to
CAA regulation, which is sufficient in these circumstances to bring the complaint
within the purview of that Act. Minard v. Nerco Delamar Co., Case No.
92-SWD-1, Sec. Rem. Ord., Jan. 25, 1995, slip op. at 4-7. I find that Complainant
has stated a claim under the CAA.
After several years of further development of the case involving a number of appeals and a
reassignment of the case because of the transfer of the original presiding ALJ to another agency,
the newly assigned ALJ issued a recommended decision in which he concluded that this ruling by
the Secretary could not be re-litigated under the doctrine of collateral estoppel and that the
Secretary had decided that Complainant has stated a claim under the Clean Air Act and that
ruling had become the law of the case. Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ Nov. 13, 1997) (in a footnote the ALJ questioned whether
Congress intended CAA to regulate negligible amounts of ethylene oxide released into an
environment).
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), the ARB issued a final decision in the matter. The ARB characterized the ALJ's ruling as perplexing, first finding that the doctrine of collateral estoppel did not apply because
this issue had not been fully and fairly litigated at the time that the Secretary issued the above-
quoted ruling, which the ARB held was simply a ruling that the complaint was sufficient to
survive a motion to dismiss for failure to state a claim. The ARB held that the doctrine of law of
the case did not apply for similar reasons that neither the Secretary nor the Board had
previously held in the case that Complainant had engaged in protected activity. The ARB went
on to hold based on the record that there was not even a remote possibility of the escape of any
significant amount of ethylene oxide or freon into the ambient air, and therefore Complainant's
concerns about those substances were not grounded in conditions constituting reasonably
perceived violations of the CAA, and therefore not protected activity.
[Nuclear & Environmental Digest VIII A 2 c]
OBLIGATION TO RESOLVE PERTINENT CONFLICTS IN EVIDENCE
An ALJ errs when he or she fails to resolve pertinent conflicts in the evidence. Consistent
with the mandate of Section 557(c)(3)(A) of the APA, the ALJ's findings of fact must provide an
explanation for the resolution of conflicts in the evidence and must reflect proper consideration
of evidence that could support contrary findings. Melendez v. Exxon Chemicals
Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000).
[Nuclear & Environmental Digest VIII B 2 b]
REOPENING OF RECORD; TRANSCRIPT AND EXHIBITS FROM ARBITRATION
PROCEEDING
In Duncan v. Sacramento Metropolitan Air Quality Management
District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB July 10, 2000), the ARB
granted Complainant's motion to reopen the record for the receipt of transcripts and exhibits
submitted in an arbitration proceeding. This evidence first became available after the ALJ closed
the record, but apparently before the ALJ issued his decision. The ARB, however, granted the
motion because of the strong federal policy favoring collectively bargained arbitration
proceedings. The ARB also granted Respondent's responsive motion to reopen the record to
receive the arbitration decision itself.
[Nuclear & Environmental Digest VIII B 6]
ORAL ARGUMENT; DISCRETION OF ARB
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121,
ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9,
2000), the ARB held that it is within its discretion whether to grant a request for oral argument.
[Nuclear & Environmental Digest VIII D 2]
FEDERAL RULES OF EVIDENCE ARE NOT TO BE APPLIED IN PART 24
WHISTLEBLOWER PROCEEDINGS
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB held that the ALJ's application of
the Federal Rules of Evidence to a proceeding under the nuclear and environmental
whistleblower regulations at 29 C.F.R. Part 24 was in error, noting that section 24.6(3)(1) of
those rules prohibit the application of formal rules of evidence in such adjudications.
[Nuclear & Environmental Digest IX B 2]
BRIEFING; PAGE LIMITATIONS
In Duncan v. Sacramento Metropolitan Air Quality Management
District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB July 10, 2000), the ARB
denied Complainant's motion to expand the initial brief page limitation from 30 to 50 pages
primarily on the ground that "history dictates that most cases can be fully and sufficiently
briefed in 30 pages. In fact, the most effective and persuasive briefs are concise and to the
point."
[Nuclear & Environmental Digest IX B 2]
FILING BY E-MAIL; NO ESTABLISHED PROCEDURE
In Parker v. Tennessee Valley Authority, ARB No. 99-123, ALJ No.
1999-ERA-13 (ARB June 12, 2000), the ARB declined to accept a document filed by
Complainant by e-mail. The ARB stated that it "has no procedures for the acceptance of e-
mailed documents."
[Nuclear & Environmental Digest IX D 3]
SEPARATION OF POWERS; RULE 60(b) NOT AVAILABLE TO REOPEN CASE
FULLY AND FINALLY DECIDED BY COURT OF APPEALS
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14,
2000), the ARB considered whether it has the authority under Fed. R. Civ. P. 60(b), to admit new
and material evidence, and to reconsider previous decisions of the Secretary and the Board,
where the Sixth Circuit had previously dismissed appeals of Complainant's case and
Complainant had not filed a petition for certiorari with the Supreme Court. The ARB concluded
that although 29 C.F.R. § 18.1(a) provides for reference to the Federal Rules of Civil
Procedure in situations not provided for or controlled by the Rules of Practice and Procedure for
the Office of Administrative Law Judges, Article III of the U.S. Constitution prevents the
Department of Labor from reopening a case fully and finally decided by the court of appeals and
not remanded for further proceedings. The ARB also concluded that principles of finality, and
specifically claim preclusion, barred the instant attempt to perpetuate the case. The Board
observed that claim preclusion doctrine is concerned with bringing an end to litigation, and that
subsequent changes in the law, the discovery of additional facts and considerations of fairness do
not matter after the parties have had a full and fair opportunity to litigate the case.
The Board also held that even if constitutionally permissible to invoke Rule 60(b) under
the circumstances of the case, the extremely narrow exception to principles of finality
represented by Rule 60(b) was not shown to be justified in invoking in the case sub
judice.
One member of the Board concurred only in the ruling that the standards for invocation of
Rule 60(b) were not met. The concurrence did not join the majority's ruling that invocation of
Rule 60(b) is barred by constitutional constraints or by the doctrine of res judicata/claim
preclusion.
[Nuclear & Environmental Digest IX D 3]
MOTION TO REOPEN; SUBSEQUENT SUPREME COURT AUTHORITY
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14,
2000), the ARB found that two Supreme Court decisions rendered subsequent to the final
decision of the court of appeals in Complainant's cases were not applicable to Complainant's
cases, but that even if they were, the cases should not be reopened on this basis, because of the
principle that "a subsequent change in the law cannot in itself constitute extraordinary
circumstances sufficient to justify vacating a final judgment."
[Nuclear & Environmental Digest IX M]
PROCEDURAL ISSUE NOT ADDRESSED BY PART 24; REFERRAL TO PART 18
AND FRCP
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB observed that "[t]he Secretary and this Board
have consistently looked to the regulations provided at 29 C.F.R. Part 18, along with the Federal
Rules of Civil Procedure, for guidance in resolving procedural questions that arise in the
processing of whistleblower complaints and which are not specifically addressed by the
regulations at 29 C.F.R. Part 24." Slip op. at 8 n.10 (citation omitted).
[Nuclear & Environmental Digest X C]
EVIDENCE; BROAD RANGE OF RELEVANCE IN CIRCUMSTANTIAL EVIDENCE
CASE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided the ALJ with guidance for
a remand proceeding in determining evidence admissibility:
... The Secretary and this Board have stated that ... the ALJ as a general rule
should refrain from excluding evidence on a technical basis but should consider factors
relevant to reliability and probative value in determining the weight to be accorded
contested evidence....
In ruling on the relevancy of evidence on remand, the ALJ
must apply a standard consistent with the broad range of circumstantial evidence that may
be probative of the question of retaliatory intent. See Seater [v. Southern
California Edison, ARB No. 96-013, ALJ No. 1995-ERA-13 (ARB Sept. 27,
1996)], slip op. at 4-8 (construing controlling regulation regarding relevancy at
29 C.F.R. §24.5(e)(1) (1995), in relationship with directory regulation at 29 C.F.R.
§18.403 and mandate of Section 7(c) of the Administrative Procedure Act, 5
U.S.C. §556(d)). The standard provided by Section 24.6(e)(1) regarding the
exclusion of only such evidence as is "immaterial, irrelevant or unduly
repetitious," incorporates the standard provided by Section 7(c) of the APA, 5
U.S.C. §556(d), and differs from the analogous provision found in the Rules of
Practice and Procedure for Administrative Hearings before the Office of Administrative
Law Judges, at 29 C.F.R. §18.403. See Seater, slip op. at 6 n.8.[42] On
remand, the ALJ must also re-examine the exclusion of evidence that he found to be
cumulative, ... in view of the foregoing standard, and he must provide the parties an
opportunity to respond accordingly.
___
[42] As stated by the Board in the Seater decision, "The mandate
of Section 24.5(e)(1) is consistent with the nature of the evidence presented in a
circumstantial evidence case of retaliatory intent, some of which may appear to be of little
probative value until the evidence is considered as a whole . . . ." Seater,
slip op. at 6 n.8.
Slip op. at 33 (some citations and footnotes omitted).
[Nuclear & Environmental Digest X C]
APPLICABILITY OF REEVES TO PART 24 WHISTLEBLOWER CASES
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided instructions to the ALJ for
a remand proceeding, reminding him to "evaluate the evidence in accordance with general
principles applicable to an employment discrimination complaint that is founded on
circumstantial evidence." The member continued:
The recent decision of the United States Supreme Court in Reeves v.
Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000), rev'g 197 F.3d
688 (5th Cir. 1999) contains a comprehensive discussion of the parties' burdens under the
framework provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), a case arising under Title VII of the Civil Rights Act of 1964 that has been
regularly applied to Part 24 whistleblower cases by the Secretary, this Board and the
United States Courts of Appeals, see, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d
271, 277 (7th Cir. 1995). We note two basic principles that have frequently been relied on
by the Secretary and this Board in whistleblower cases that are quoted in Reeves.
First, as stated in St. Mary's Honor Center v. Hicks, 450 U.S. 502 (1993), to find
discrimination established, "[i]t is not enough . . . to disbelieve the employer; the
factfinder must believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center, 450 U.S. at 519, quoted in Reeves, 120 S.Ct. at
2108. The second guideline that we believe is particularly instructive is the observation of
the Court in United States Postal Service Board of Governors v. Aikens, 460 U.S.
711 (1983), that "[t]here will seldom be 'eyewitness' testimony as to the employer's
mental processes" for purposes of proving intentional discrimination.
Aikens, 460 U.S. at 716, quoted in Reeves, 120 S.Ct. at 2105-06. Finally,
we note the guidance provided by the United States Court of Appeals for the Eighth
Circuit in Ellis Fischel State Cancer Hosp. v. Marshall, a case which arose under
the whistleblower protection provision of the Energy Reorganization Act of
1974,"[t]he presence or absence of retaliatory motive is a legal conclusion and is
provable by circumstantial evidence even if there is testimony to the contrary by
witnesses who perceived lack of such improper motive." 629 F.2d 563, 566 (8th
Cir. 1980).
Slip op. at 41-42.
[Nuclear & Environmental Digest X C]
EVIDENCE; PROBATIVE VALUE OF PURPORTED ADMISSION BY SECRETARY
OF ENERGY
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121,
ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14,
2000), Complainant sought to reopen his case for the receipt of deposition testimony of a former
Secretary of Energy which allegedly constituted an admission that the Department of Energy
engaged in a pattern and practice of discrimination against whistleblowers. The ARB denied the
request to reopen, finding that this admission would have no probative value to show that, in
Complainant's particular cases, Complainant was discriminated against.
[Nuclear & Environmental Digest X P]
ADVERSE INFERENCE; NO INFERENCE DRAWN BY OSHA'S LACK OF
OPPOSITION WHERE OSHA WAS NEVER PARTY
In Varnadore v. Oak Ridge National Laboratory, ARB No. 99-121,
ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9,
2000), the ARB denied Complainant's motion to draw the adverse inference that OSHA and the
Office of the Solicitor did not oppose his motion to reopen where OSHA was never a party to the
action.
[Nuclear & Environmental Digest XI B 2 viii]
CAUSATION; LEGITIMATE REASONS FOR ADVERSE EMPLOYMENT ACTION
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), Complainant had questioned the safety of methods used to test and sterilize
devices used to measure the blood pressure of astronauts (and test subjects) for space shuttle
missions. At one point, Complainant took matters into her own hands, and, without
authorization, moved devices used to measure blood pressure from a clean room into the hall
outside next to the trash, thus breaking the chain of traceability and making the devices unusable
for an upcoming space shuttle mission. As a result, Respondent had to pay for the destruction of
the devices as flight hardware, and was faced with a very short time period to obtain
replacements. NASA managers universally reacted to Complainant's action in a negative
fashion, which the ARB found supportive of a conclusion that there was a legitimate reason for
the adverse employment actions taken against Complainant e.g., assignment of duties
that did not include work on devices that would be used on the space shuttle. The ARB found
that Complainant's subsequently being barred from the Space Center was not out of line because
she had at least apparently -- disobeyed a directive not to visit the clean room while the devices
were being worked on. The ARB noted that NASA employees testified that they admired
Complainant's "gumption" in raising the issue, but condemned her unauthorized
property disposal. Finally, the ARB noted that NASA had treated Complainant's concerns
seriously and promptly investigated them. On this record, the ARB concluded that NASA had
not taken adverse employment action based on Complainant's protected activity.
[Nuclear & Environmental Digest XI B 1]
EVIDENCE; RELEVANCE OF ADVERSE ACTIONS FOR WHICH NO TIMELY
COMPLAINT WAS FILED
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB observed that adverse employment actions about
which Complainant did not timely file complaints could not constitute independent causes of
action, but are clearly relevant to question of Respondent's motive for its later termination of
Complainant's employment because Respondent cited previous incidents as a contributing factor
in the termination decision. Moreover, the ARB held that even incidents not cited as a
contributing factor must be evaluating in examining the mind-set of the decision-makers in
reaching the termination decision. The ARB also noted that they would be relevant to the issue
of whether there had been a continuing violation culminating in Complainant's termination.
[Nuclear & Environmental Digest XI B 3]
PRIMA FACIE CASE ANALYSIS; UTILITY OF IN FULLY LITIGATED CASE
In Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July
13, 2000), the ALJ noted the ARB's position that in a fully litigated case in which the respondent
presents evidence of a legitimate motive for the personnel action, an analysis of a prima
facie case serves no analytical purpose because the final decision will rest on the
complainant's ultimate burden of proof, but stated that "despite some duplication of effort
... working through the prima facie elements [is] useful since the ultimate burden of
proof still involves many of the elements covered in the prima facie analysis. In
addition, if the complainant, even in a fully litigated hearing, fails to establish an element of the
prima facie case, evaluating whether an ultimate burden of proof is met may not serve
any purpose." Slip op. at 33 n.10.
To the same effect: Petit v. American Concrete Products, Inc., 1999-STA-47, slip op. at 3 n.1 (ALJ Apr. 27, 2000).
[Nuclear & Environmental Digest XII A]
PROTECTED ACTIVITY; MUST BE IDENTIFIED BEFORE CONSIDERATION OF
WHETHER ADVERSE ACTION WAS TAKEN IN RETALIATION
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB held that
In view of the role of protected activities in the retaliatory intent analysis,
identification of the activities that were engaged in that are statutorily protected is a
crucial first step. The chronology of protected activities and personnel actions is also
important, as temporal proximity between protected activity and the decision to take an
adverse action is relevant to the determination whether such action was motivated by
retaliatory intent. ... Thus, as is hereinafter more fully discussed, the failure of the ALJ to
first identify which of Melendez' activities qualified for protection makes it impossible to
determine which of Exxon's actions taken against Melendez were taken for wholly
legitimate reasons rather than in retaliation for Melendez having engaged in such activity.
Slip op. at 12 (citation omitted). A concurring opinion by the Chair of the ARB clarified
that "[e]ven in cases in which the ALJ or this Board ultimately conclude that no unlawful
discrimination took place, the preliminary step of evaluating the protected or non-protected status
of the actions that prompted the complaint is procedurally useful, helping to focus the
discrimination inquiry." Slip op. at 43-44. The concurrence, however, also observed in a
footnote that "[o]f course, it generally would not be necessary to explore the 'protected
activity' question in cases where no adverse action has occurred. However, it is undisputed in this
case that Melendez suffered an adverse action, i.e., he was discharged." Slip op. at
44 n.55.
[Nuclear & Environmental Digest XII B 1 d i]
PROTECTED ACTIVITY; FIFTH CIRCUIT
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), one member of the ARB noted in a footnote that the holding
of Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), that internal
complaints were not protected by the employee protection provision of the Energy
Reorganization Act, 42 U.S.C. §5851 (1982), then in effect, has not been extended by the
Secretary of Labor beyond cases that arise within the Fifth Circuit and which are subject to the
ERA provisions in effect prior to October 24, 1992, when ERA amendments providing express
coverage of internal complaints took effect. The member thus found that in the present case,
arising under the CAA and TSCA, the view that internal complaints are covered would be
applied even though the case arose in the Fifth Circuit.
[Nuclear & Environmental Digest XII C 4]
ACTUAL BELIEF AND REASONABLE BELIEF THAT ENVIRONMENTAL
STATUTES WERE BEING VIOLATED BY RESPONDENT
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ
No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB ruled that in order for
Complainant's activities to be protected under 29 C.F.R. § 24.1(a), Complainant must
prove that he actually believed that Respondent was violating environmental laws
and that such belief was reasonable in other words, there is both a subjective
and objective element to Complainant's belief that Respondent was violating the law.
Respondent contended that Complainant's lack of knowledge of the specific requirements
of the TSCA and the CAA precludes protection under those statutes. The member concluded
that "[a] requirement that employees independently ascertain the specific requirements of
environmental legislation applicable to the facility where they work before discussing
compliance issues with their employers would not serve the interest of encouraging 'employees to
come forward with complaints of health hazards so that remedial action may be taken.'"
Slip op. at 27, quoting Simon v. Simmons Industries, Inc., 1987-TSC-2, slip op. at 4
(Sec'y Apr. 4, 1994).
Respondent also contended that Complainant must prove that his activities were grounded
in a sincere desire to inform the public about violations of laws and statutes, as a service to the
public as a whole, based on Wolcott v. Champion International Corp., 691 F.Supp.
1052, 1059 (W.D. Mich. 1987). The ARB member rejected this contention, noting that
Wolcott was based on interpretation of a state whistleblower statute, and holding that the
Secretary of Labor's decision in Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan.
25, 1994), requiring that the whistleblower actually believe that the employer was acting in
violation of the environmental statute at issue addressed the concern that whistleblower
protection under Part 24 not be extended to knowingly false reports. The member also reviewed
the legislative history of the CAA and TSCA, and caselaw under similar whistleblower statutes,
and concluded that the Secretary's decisions in Minard and Oliver v. Hydro-Vac
Services, Inc., 1991-SWD-1 (Sec'y Nov. 1, 1995), that whistleblower motivation is not
relevant were well grounded.
[Nuclear & Environmental Digest XII C 4]
REASONABLE PERCEPTION OF VIOLATION OF UNDERLYING STATUTE
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB held that
To be protected under the whistleblower provision of an environmental
statute such as the CAA, an employee's complaints must be "grounded in
conditions constituting reasonably perceived violations of the environmental acts."
Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Sec. Dec. and Rem. Ord.,
Jan. 25, 1994, slip op. at 5; Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2,
Sec. Dec. and Ord., Aug. 17, 1993, slip op. at 26, aff'd, 1995 U.S. LEXIS 9164
(9th Cir. Apr. 25, 1995). The complainant must "have a reasonable perception that
[the respondent] was violating or about to violate the environmental acts."
Id. The issue is one of the reasonableness of the employee's belief."
Slip op. at 15. The ARB observed that "[t]he purpose of the CAA is to protect the
public health by preventing pollutants from fouling the ambient air. Employee complaints about
purely occupational hazards are not protected under the CAA's employee protection
provision. Minard, slip op. at 5-6. See also, Tucker v. Morrison & Knudson,
Case No. 94-CER-1, ARB Final Dec. and Ord., Feb. 28, 1997, slip op. at 5 (under environmental
acts, complaint about violations that related only to occupational safety and not environmental
safety were not protected). ... Thus, the key to coverage of a CAA whistleblower complaint is
potential emission of a pollutant into the ambient air." Slip op. at 15 (footnote omitted;
emphasis as in original).
Thus, in Stephenson, the ARB considered whether Complainant's complaints were based on a reasonable perception that the use of ethylene oxide to
sterilize devices used to measure the blood pressure of astronauts on the Space Shuttle would
result in emission of potentially harmful levels of ethylene oxide into the ambient air, and thus
constitute protected activity under the CAA (a TSCA complaint had earlier been dismissed
because sovereign immunity had not been waived under that Act). The ARB concluded that
there was not even a remote possibility of the escape of any significant amount of ethylene oxide
or the freon used as a carrier gas during sterilization into the ambient air, and therefore
Complainant's activity was not protected by the CAA.
Compare Melendez v. Exxon Chemicals Americas, ARB No.
96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000) (one member holds that fugitive emissions
or pursuant of information about reports on exposure to emissions may fall within the CAA
purpose of protecting air quality).
[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; EMPLOYEE'S PERSONAL HEALTH CONCERN;
POTENTIAL RELEVANCE TO BOTH OSH ACT AND ENVIRONMENTAL ACTS
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB remanded the case to the ALJ primarily on the
ground that the ALJ's rulings excluded relevant evidence concerning activities engaged in by
Complainant related to his exposure and health concerns. The ARB held that "the ALJ
premised his conduct of the hearing on the mistaken view that [Complainant's] health concern
posed an occupational health issue that was solely relevant to the Occupational Safety and Health
Act (OSHA) and not to the environmental acts." The ARB held that "it is a matter of
well settled case law that actions that serve the environmental protection purposes of the TSCA,
the CAA and similar environmental statutes may begin with an employee's personal health
concern."
A concurring opinion by the Chair of the ARB noted that the ALJ had misinterpreted an
earlier ruling by the Secretary of Labor that Labor Department ALJs have no jurisdiction over
complaints under the OSH Act. This ruling did not compel the result that concerns raised under
the OSH Act and the environmental statutes are mutually exclusive, the concurrence noting the
example of TSCA record keeping requirements that would plainly include data that may overlap
OSHA concerns. [see also the lead opinion, slip op. at 18-23, in regard to the relevance of the
TSCA record keeping requirements].
[Nuclear & Environmental Digest XII D 12 a]
PROTECTED ACTIVITY UNDER TSCA; QUESTIONING MANAGEMENT ABOUT
DOCUMENTATION OF CHEMICAL EXPOSURE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), Respondent repeatedly objected to the questioning of
witnesses or the introduction of documentary evidence that was related to Complainant's
concerns about exposure to chemicals at Respondent's facility, on the ground that Complainant's
health concerns related only to OSHA and were irrelevant to an environmental whistleblower
complaints. One member of the ARB held that these objections lacked merit because
Complainant's concerns relating to company records concerning his history of chemical exposure
related directly to the collection of data that is mandated by the TSCA. The lead opinion wrote
"an employee's questioning of management regarding the documentation of his or her
complaints about health problems that the employee believes are related to chemical exposure is
linked directly to the records that are required to be kept under [TSCA] Section 8(c)."
[Nuclear & Environmental Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT INSUFFICIENT FUNDING
In Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July
13, 2000), the ALJ recommended a ruling that Complainant did not engage in protected activity
by complaining to his supervisors that insufficient and ineffective resources had been provided to
assist him in developing an NRC examination for individuals to be entrusted with running a
nuclear power plant. The ALJ found the question to be a "very close call,"
considering the mandate to construe liberally the definition of protected activity, but found that
under circumstances Complainant's belief of a violation of the underlying nuclear protection law
was not factually reasonable.
[Nuclear & Environmental Digest XIV B 2]
COVERED EMPLOYER NEED NOT MEET COMMON LAW EMPLOYMENT TEST
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB held that "an employer who is not employee's common law
employer may nevertheless be held liable for retaliation under the CAA employee protection
provision" depending on the specific facts of a case. The ARB noted that it rendered this
holding in two prior appeals in the case, and that the ALJ's decision to revisit the construction of
"employer" and "employee" under the CAA was error in that it violated
the law of the case on this point.
[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS; SETTING DOLLAR
AMOUNT WHERE EXPERT TESTIMONY IS OF LIMITED PROBATIVE VALUE
In Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4
(ALJ June 29, 2000), the ALJ recommended an award of $50,000 in compensatory damages for
emotional distress. Complainant had presented expert testimony, but the ALJ found that it was
of limited probative value. In setting the amount of the award, therefore, the ALJ looked at cases
in which amounts were awarded for emotional distress without expert evidence in support. He
then set the amount at the high end of that range ($20,000 to $50,000) because, despite the
limited weight given to the expert's opinion, it was more probative than a complainant's mere
conjecture.
[Nuclear & Environmental Digest XVI E 3 a]
ADMINISTRATIVE (JUDICIAL) NOTICE; SURVEY OF LAW FIRM ECONOMICS;
MARTINDATE-HUBBELL LAW DIRECTORY
In Ferguson v. Weststar, Inc., 1998-CAA-9 (ALJ June 21, 2000), the
ALJ, while reviewing an attorney fee application, concluded that it was proper to take judicial
notice of the Survey of Law Firm Economics, published by Altman & Weil
Publications, Inc., which reports hourly billing rates by individual non-litigation specialities and
years of legal experience. The ALJ also took judicial notice of the Martindale-Hubbell Law
Directory in considering Complainant's counsel scope of experience and specializations.
[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES; SDWA AMENDMENTS
In Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4
(ALJ June 29, 2000), the ALJ found that exemplary damages can be imposed against an agency
of the United States under the SDWA only since the effective date of P.L. 104-182 The Safe
Drinking Water Act Amendments of 1996. The effective date of those amendments was August
6, 1996. The amendments for the first time subjected Federal agencies to the full range of
remedies under the SDWA. See 42 U.S.C. § 300j-6(a) and (b).
[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES; STANDARD; SETTING THE DOLLAR AMOUNT
In Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4
(ALJ June 29, 2000), the ALJ rendered a default judgment against Respondent because of serious
misconduct in failing to respond fully to Complainant's discovery requests. The ALJ therefore
ruled in Complainant's favor on the allegation that Respondent had paid so much money to
Complainant's former counsel under the terms of a settlement agreement -- under a term that
provided for continuing payments to that counsel in assisting Complainant in implementing the
settlement -- that he had become Respondent's agent. In considering exemplary damages, the
ALJ found that such conduct was shocking, and must be deterred in no uncertain terms. The
ALJ found that Respondent demonstrated reckless and callous indifference to Complainant's
rights, by leaving him without effective counsel, and the public, by apparently attempting to
cover up failures to comply with environmental laws. The ALJ noted that in setting the amount
of exemplary damages, the standard is the amount necessary to punish and deter the
reprehensible conduct, rather than whether Complainant is deserving. The ALJ found the
appropriate sanction to be the amount that Respondent paid to Complainant's former counsel
$281,115.50.
[Nuclear & Environmental Digest XVIII C 7]
DEFAULT JUDGMENT; FAILURE TO PROVIDE HIGHLY PROBATIVE EVIDENCE
DURING DISCOVERY
See casenote of Beliveau v. Naval Underseas Warfare Center, 1997-SDW-1 and 4 (ALJ June 29, 2000), supra, under Nuclear & Environmental Digest VII A
3.
[Nuclear & Environmental Digest XX A]
STAY OF ARB REVIEW; ELEVENTH AMENDMENT CHALLENGE
In State of Rhode Island, Rhode Island Dept. of Environmental Management v.
USDOL, C.A. No. 00-44T (D.C. R.I. Mar. 14, 2000), the United States District Court
for the District of Rhode Island granted a temporary restraining order, enjoining the U.S.
Department of Labor "from proceeding with any further prosecution of filing of Migliore v.
RIDEM, ARB Case NO. 99-118, Migilore v. RIDEM, DOL Case No. 2000 SWD 1, Raddatz v.
RIDEM, OSHA Case No. 01-0190-00-001 or similar cases against Plaintiff that have reached the
level of Administrative Law Judge. The request for a Temporary Restraining Order is denied to
the extent it seeks to restrain and/or enjoin OSHA from proceeding with the initial investigatory
stage of any complaint." Rhode Island's motion was based on the contention that the filing,
investigation and prosecution of these whistleblower cases violates its sovereign immunity and
the Eleventh Amendment.
[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE DOCTRINE APPLIES TO ADMINISTRATIVE ADJUDICATIONS
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB
July 18, 2000), the ARB found that the law of the case doctrine applies to
adjudications within administrative agencies. Thus, when the ARB "has ruled on a
question of law, the law of the case doctrine binds an administrative law judge acting after a
remand of the case."
[Nuclear & Environmental Digest XXI C]
LAW OF THE CASE; DISTINCTION BETWEEN STATING A CLAIM UNDER THE
CAA, AND FINDING OF PROTECTED ACTIVITY UNDER THE CAA
See casenote of Stephenson v. NASA, ARB No. 98-025, ALJ No.
1994-TSC-5 (ARB July 18, 2000), supra, under Nuclear & Environmental Digest VII C
3.
