WHISTLEBLOWER NEWSLETTER
United States Department of Labor
Office of Administrative Law Judges Law Library

ADMINISTRATIVE REVIEW BOARD; VALIDITY OF CREATION
[N/E Digest VIII B 1 d]

In Complainant's petition for review by the 6th Circuit of the Board's decision in Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), petition filed Varnadore v. Secretary of Labor, No. 96-3888 (6th Cir. Aug. 12, 1996), Complainant attacks the ARB's decision on a number of grounds related to validity of the Board's creation, including the absence of notice and comment rulemaking or Congressional authorization.

ADVERSE ACTION; COMMENT ABOUT POOR PERFORMANCE; CONSTRUCTIVE DISCHARGE OR THREAT OF RETALIATORY REPRISAL
[N/E Digest XIII B 18]

In Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996), the manager of the nuclear power plant at which Complainant was working as a contract employee conducted an investigation into charges made by Complainant of racial discrimination and discriminatory assignments. Complainant asserted that his charges included charges of paperwork and plant violations, but the ARB declined to overturn the ALJ's finding that such charges had not been made. The manager, however, was aware of Complainant's complaint about a NRC requirement to keep radiation exposure as low as reasonably achievable. The manager found that a racial slur had been directed at Complainant and reprimanded that employee; however, the manager also found that other allegations could not be substantiated. In his "Note to File" the manager wrote that he had discussed with Complainant "That I had discovered a history of poor performance and that this would be 'dealt with' by his PPM management...." Complainant apparently then requested a reduction of force discharge.

The Board found that the "dealt with" language was not a threat of firing or reprisal; rather the manager was merely communicating that the contractor was responsible for dealing with performance issues. The Board also found that even if the manager's remarks could be viewed as threatening, they were not sufficient to support a constructive discharge. The Board wrote:

To establish a constructive discharge, the employee must show that working conditions were rendered so difficult, unpleasant, unattractive or unsafe that a reasonable person would have felt compelled to resign. ... It is insufficient that the employee simply feels that the quality of his work has been unfairly criticized. Furthermore, when an employee's performance is poor, "an employer's communication of the risks [of discipline for that poor performance] does not spoil the employee's decision to avoid those risks by quitting." Henn v. National Geographic Society, 819 F.2d 824, 829-30 (7th Cir. 1987, cert. denied, 484 U.S. 964 (1987).

Slip op. at 7 (some citations omitted).

ELEMENTS OF WHISTLEBLOWER PROTECTION CASE
[N/E Digest XI]

In order to prevail in a whistleblower protection case based upon circumstantial evidence of retaliatory intent, it is necessary to prove that:

• the complainant was an employee of a covered employer;

• the complainant engaged in protected activity;

• the complainant thereafter was subjected to adverse action regarding his or her employment;

• the Respondent knew of the protected activity when it took the adverse action; and

• the protected activity was the reason for the adverse action.

See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); Carroll v. Bechtel Power Corp., Case No. 91-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

Saporito v. Florida Power & Light Co., 94-ERA-35 (ARB July 19, 1996).

EMPLOYMENT RELATIONSHIP WHERE NO BLACKLISTING; ABSENCE OF ALLEGATION OF ADVERSE EFFECT ON COMPENSATION, TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT
[N/E Digest XIV B 2]

In Saporito v. Florida Power & Light Co., 94-ERA-35 (ARB July 19, 1996), Complainant filed a complaint against his former employer alleging that it retaliated against him by making negative statements about him in a filing with the NRC. The Board noted that a former employer could be liable for blacklisting pursuant to 29 C.F.R. § 24.2(b), but held that this was not a blacklisting case because all that was alleged was that Complainant filed a petition with the NRC regarding his former employer, that the NRC in the normal course of business requested that employer's views on the petition, and that in response to the NRC request, the employer provided its views. Although the former employer made unflattering statements about Complainant in its NRC response, the whistleblower complaint was dismissed by summary decision where complainant did not allege that these statements adversely affected his compensation, terms, conditions, and privileges of employment.

Complainant also alleged that a law firm that represents the employer retaliated against Complainant by contacting an attorney for another employer regarding Complainant. The Board likewise held that the law firm was not an employer within the meaning of the ERA whistleblower provision.

HOSTILE WORK ENVIRONMENT; MUST RELATE TO EVENTS OTHER THAN ALLEGED PROXIMATE RETALIATION
[N/E Digest XIII C]

Where Complainant alleged generally that he was subjected to a hostile work environment, but he did not point to any specific instances of harassment or alleged retaliatory actions other than the events associated with the alleged proximate constructive discharge or threat of retaliatory reprisal, the hostile work environment legal analysis does not need to be applied. See Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996).

KNOWLEDGE REQUIREMENT; HIGH LEVEL SUPERVISOR'S KNOWLEDGE OF PAPERWORK
[N/E Digest XI A 2 c]

In Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996), the evidence failed to show that the manager of the nuclear power plant at which Complainant was working as a contract employee was aware of complaints by Complainant to contract foremen about paperwork or plant violations. Although the manager was responsible for implementing the modification work done by the contract, and he met daily with contract personnel about scheduling issues, specific workers and job assignments were not discussed. Questions about paperwork were addressed to contract foremen; the manager did not work at the level were he became aware of questions about paperwork.

The Board rejected Complainant's assertion that knowledge of protected activity could be imputed to the manager without proof. Although knowledge can be shown by circumstantial evidence, the Board stated, that evidence must show that an employee of the respondent with authority to take the complained of action, or an employee with substantial input in that decision, had knowledge.

PRO SE COMPLAINANT; LATITUDE DOES NOT EXTEND TO FRIVOLOUS CLAIMS
[N/E Digest IX M]

Although a pro se complainant is entitled to a certain degree of adjudicative latitude, such latitude does not extend to frivolous claims. Saporito v. Florida Power & Light Co., 94-ERA-35 (ARB July 19, 1996).

PRIOR EMPLOYMENT INFRACTIONS AS EVIDENCE OF SUBSEQUENT NONDISCRIMINATION
[STAA Digest III G]

Where the record was replete with warning letters concerning Complainant's poor work history similar to and consistent with letters issued subsequent to Complainant's protected activity, Complainant did not prove by a preponderance of the evidence that Respondent issued the post-protected activity warning letters for discriminatory reasons.

Complainant admitted the various acts of misconduct in the warning letters at issue, and the record did not support his assertion that they involved incidents for which warning letters where not usually issued by Respondent. Complainant, a driver, did not have sufficient background or expertise for his views on the trucking industry or Respondent's disciplinary practices, whereas management officials testified that the reprimands were consistent with Respondent's policies.

Skelley v. Consolidated Freightways, Corp., 95-SWD-1 (ARB July 25, 1996).

PROTECTED ACTIVITY; NRC REQUIREMENTS
[N/E Digest XII D 3]

Where Complainant, an employee of a support services contractor, voiced complaints to the manager of nuclear power plant in which the contract services were being provided about practices that Complainant alleged violated the NRC requirement to keep radiation exposure as law as reasonably achievable, Complainant engaged in protected activity. Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996).

REFUSAL TO DRIVE COMPLAINT; COMMUNICATION REQUIREMENT
[STAA Digest V A 4 c iii]

In LaRosa v. Barcelo Plant Growers, Inc., 96-STA-10 (ARB Aug. 6, 1996), Complainant had been on duty approaching fifteen hours on a difficult and unsuccessful first day as a solo driver. He telephoned the dispatcher, who told him to return to the facility. Complainant dropped off his truck and went home; he did not inform anyone that he would not take a run scheduled to begin only four hours later. The dispatcher had not told Complainant that it was not necessary to report to work for the next run. When it was discovered that Complainant had not come to work, the decision was made to fire him. Complainant contended that the dispatcher knew the situation and should not have expected Complainant to report.

The Board agreed with the ALJ's conclusion that Complainant did not establish a "refusal to drive" complaint under STAA, 49 U.S.C. § 31105(a)(1)(B), because he failed to show that he informed Respondent of the safety basis for his refusal to drive. The Board wrote:

... [Complainant's] statement regarding bringing the truck in on August 9, because he was approaching fifteen hours, cannot be considered a refusal to make the 3:00 a.m. run on August 10. [Complainant] wants us to assume that [the dispatcher] was aware, not only of the fact that he could not take the 3:00 a.m. run, but that the reason for refusing to take the run was safety related.

At this point in our analysis [Complainant] has the burden of proof and we simply cannot assume compliance with the requirement, where reasonally [sic] possible, that a driver inform his employer of the safety basis for his refusal to drive. Assistant Secretary of Labor and Johnny E. Brown v. Besco Steel Supply, 93-STA-30, Sec. Dec., Jan. 24, 1995, slip op. at 3; LeBlance v. Fogleman Truck Lines, Inc., 89-STA-8, Sec Dec., Dec. 20, 1989, slip op. at 12-13; Perez v. Guthmiller Trucking Co., 87-STA-13, Sec. Dec., Dec. 7, 1988, slip op. at 25 n.14. [Complainant] never expressly refused to take the 3: 00 a.m. run, he just did not show up.

The Board, however, remanded for the ALJ to consider the matter under the "complaint" provision of the STAA, 49 U.S.C. § 31105(a)(1)(A).

SETTLEMENT; AMOUNT RECEIVED BY COMPLAINANT; RELATION TO ATTORNEY'S FEE PAID BY COMPLAINANT
[N/E Digest XVIII G 1]

In Ezell v. Tennessee Valley Authority, 95-ERA-39 (ARB Aug. 21, 1996), the Board had ordered the parties to advise it as to the actual amount of the settlement dollar amount that Complainant was to receive. Complainant's counsel advised that Complainant was to receive the entire amount of the settlement since she had paid her attorney under a separate agreement. Although the amount of the settlement was slightly less than Complainant's total attorney's fees and costs, the Board nonetheless approved the settlement, noting that "the Wage and Hour investigation found that the adverse actions taken against Complainant were not motivated by her protected activities and that she remains employed by Respondent at her regular employment."

SETTLEMENT; ATTORNEY'S FEES
[N/E Digest XVII G 1]

In Blackburn v. Metric Constructors, Inc., 86-ERA-4 (ARB July 22, 1996), the parties reached a settlement on attorneys fees and costs relating to appellate work before the Fourth Circuit. The Board ordered the parties to submit a copy of this settlement for approval by the Board as the Secretary's designee.

SETTLEMENT; INSUFFICIENT TO DISCLOSE TOTAL AMOUNT PAID TO COMPLAINANT; DISCLOSURE MUST REVEAL AMOUNT OF TOTAL DESIGNATED FOR ATTORNEY'S FEES, EXPENSES AND COSTS
[N/E Digest XVII G 1]

In Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ Aug. 15, 1996), the ALJ recommended approval of a settlement of an ERA whistleblower complaint. The ALJ noted that she was required to determine the dollar amount received by Complainant to determine whether a settlement was fair, adequate and reasonable. The Memorandum of Understanding and Agreement submitted by the parties, in fact, did disclose the total dollar amount to be paid to Complainant.

The Board, however, noting that another provision of the settlement released Respondent from claims for attorney's fees, expenses and/or costs, and that the agreement did not specify the amount of attorney's fees to be paid, ordered the parties to file a joint response indicating the "actual amount of money to be to the Complainant...." Guity v. Tennessee Valley Authority, 90-ERA-10 (ARB Aug. 28, 1996). If the parties could not agree upon a joint response, Complainant's counsel was ordered to submit the required information.

SETTLEMENT; SIDE AGREEMENTS
[N/E Digest XVII G 6]

In Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB May 31, 1996) and Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB June 19, 1996), the Board had ordered the parties to disclose the actual amount the Complainant will ultimately receive in settlement of his complaint before DOL.

In Biddy v. Alyeska Pipeline Service Co., 95-TSC-7 (ARB Aug. 1, 1996). the Board noted that the parties ultimately filed a joint response stating that none of the federal case settlement would be used for attorneys' fees or costs, and that information regarding the details of the settlement of a state-law based claim was beyond the purview of the Board's authority. The Board, however, received information indicating that some of the parties' representations may not have reflected the actual total settlement amount. Apparently suspecting a side agreement to avoid DOL review, the Board remanded the matter to the ALJ for further proceedings. In addition, the Board directed the Wage and Hour Administrator and the Solicitor to review four other settlements of persons who had been joint complainants with Complainant, noting that those complainants had accepted nominal amounts to settle their federal cases and give up their employment with the respondent.

SUMMARY DECISION; FAILURE TO RESPOND UNTIL BEFORE SECRETARY OR BOARD; SUPPORT FOR ALLEGATIONS
[N/E Digest VII C 1]

In Saporito v. Florida Power & Light Co., 94-ERA-35 (ARB July 19, 1996), Complainant alleged that a law firm that represents the named employer retaliated against Complainant by contacting an attorney for another employer regarding Complainant. Respondent moved for summary decision asserting that the conversation concerning Complainant could not have adversely affected Complainant's employment at a facility of the other employer because the conversation took place after the other employer had taken adverse action against Complainant and even after Complainant had filed an initial complaint against the other employer. The ALJ recommended granting the motion for summary decision.

Complainant did not respond to the issue of timing while the case was before the ALJ, but waited until his rebuttal brief before the Secretary. The Board held that Complainant's belated response did not remedy the fact that he made no attempt to counter Respondent's assertion before the ALJ.

The Board also noted that Complainant may have been arguing that summary decision was not appropriate because the law firm did not support its assertions about timing with affidavits. The Board noted that this argument was unpersuasive in view of Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (where moving nonmoving party will bear burden of proof at trial on dispositive issue, moving party may rely solely on pleadings, depositions, answers to interrogatories, and admissions on file; nonmoving then must go beyond the pleadings and by his or her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing genuine issue for trial).

TEMPORAL PROXIMITY; ONE YEAR TOO DISTANT; INTERVENING LEGITIMATE REASON FOR ADVERSE EMPLOYMENT ACTION
[N/E Digest XI A 2 b ii and iii]

Where nearly a year had elapsed between Complainant's filing of several reports under a program encouraged by Respondent for employees to identify areas of concern, and the decision to terminate Complainant's employment, the evidence was insufficient to establish that the termination decision was inspired by the protected activity.

In addition, the Board indicated that the existence of an intervening, legitimate reason for terminating Complainant's employment -- his attendance at a conference contrary to express instruction (his second violation of company policy in this respect) -- was the more important factor.

Evans v. Washington Public Power Supply System, 95-ERA-52 (ARB July 30, 1996), citing Williams v. Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11, 1995) (legitimate reason for termination occurring after protected activity may negate any temporal inference of causation).

TREATMENT OF OTHER EMPLOYEES; TRUE REASON; DUAL MOTIVE
[STAA Digest IV D 3]

Where Complainant was found to have blatantly disregarded Respondent's lunch and break policy, and there was evidence that Respondent treated other drivers who violated the policy similarly, Complainant was found not to have carried his burden of proving that the true reason for the adverse employment action was retaliation for protected activity. Complainant had alleged "selective and discriminatory" enforcement of the policy based on the fact that he had filed an earlier STAA complaint.

The Board indicated that the complaint also would fail under the dual motive analysis because, even if the protected activity was found to have motivated Respondent in part to discipline Complainant, Respondent's treatment of other known violators established that it would have reached the same decision in the absence of protected activity.

Cach v. Distribution Trucking Co., 95-STA-12 (ARB Aug. 20, 1996).