In Majors v. ASEA Brown Boveri, Inc., 96-ERA-33 (ARB Aug. 1, 1997), Complainant asserted that Respondent reduced his long term disability payment to offset his Social Security disability payments in retaliation for whistleblower activity nine years earlier. Wage and Hour terminated its investigation after determining that Complainant had not established a prima facie showing that his protected activity was a "contributing factor" in any action taken by Respondent.

The ALJ ruled on summary decision that the complaint was untimely; this ruling was adopted by the ARB. The ARB, however, also observed that this case "is a paradigm of the type of case that can properly be rejected without further investigation." The Board noted that the 1992 amendments to the ERA added new requirements for the termination of investigation of complaints by the DOL: a sort of gatekeeper test. The Board found that Complainant's complaint was "patently unreasonable and ... precisely the kind of frivolous claim which the amendment to the ERA was intended to address."

The Board also noted that once a hearing is requested, the investigative findings carry no weight either before the ALJ or the Board.

In Beliveau v. Naval Undersea Warfare Center, 97-SDW-1 and 4 (ARB Aug. 14, 1997), Complainant sought an interlocutory appeal to the ARB relating to the alleged breach of a settlement agreement that had been reached prior to completion of a Wage and Hour investigation. The ARB declined to exercise the discretion to entertain an interlocutory appeal on a controlling question of law, finding that the "best policy under these circumstances is to hew to the general principle that interlocutory appeals are strongly disfavored ...." Slip op. at 3 (citations omitted).

"Proximity in time between protected activity and an adverse action is solid evidence of causation." White v. The Osage Tribal Council, 95-SDW-1, slip op. at 4 (ARB Aug. 8, 1997).

In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), the ARB adopted the ALJ's findings in regard to pretext. Respondent had discharged Complainant, an environmental inspector with responsibility for monitoring and reporting on Respondent's compliance with certain provisions of the SDWA, for "disloyalty" and "misconduct". The charges against Complainant were found to be based in Complainant's dogged enforcement of the SDWA. The ARB noted that one complaint filed against Complainant by a leaseholder who had been cited for serious violations and lost substantial money because of EPA action initiated by Complainant was based on a person "who clearly had his own ax to grind with [Complainant] and the EPA", and that Respondent's taking this person's statements at face value, and acting on them with haste, clearly supported a finding of pretext. Earlier in the decision, the Board had found that Complainant had taken on "responsibilities to report on surface pollution problems seriously and discharged them in a professionally respected manner."

Reporting violations of environmental statutes in the course of one's regular duties is protected activity. Thus, in White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), there was no serious issue that an environmental inspector with responsibility for monitoring and reporting on Respondent's compliance with certain provisions of the SDWA was engaged in protected activity when he filed such reports.

In Thompson v. Houston Light & Power Co., 96-ERA-34 and 38 (ALJ Aug. 19, 1997), Complainant filed a complaint based on an anticipatory breach of an earlier settlement agreement that had been approved by the Secretary of Labor. Specifically, Complainant raised concerns whether Respondents would be able to comply with a provision of the settlement agreement providing that Respondents would "warrant that Complainant's access to the South Texas Project has not been suspended, revoked or denied." The ALJ found that Complainant's theory was that "Respondents will not be able to perform as warranted by [this provision because it] is unenforceable as violative of NRC rules and/or regulations, i.e., [the provision] is unenforceable as against public policy."

The ALJ ruled on summary decision against Complainant, holding that a complainant cannot bring before the ALJ either an action to enforce a settlement, or a motion to set aside an executed and Secretary-approved settlement agreement. Alternatively, the ALJ ruled that the complaint could not be founded in anticipatory repudiation of the settlement agreement, because "to make out a case for anticipatory breach, there must be an underlying valid contract provision. It is specifically Complainant's complaint in this case that the underlying provision is unenforceable and, a fortiori, it can not be breached by anticipatory repudiation." The ALJ, however, noted that he was not basing his ruling on a holding that anticipatory repudiation of a settlement agreement can never be actionable under the ERA.

In Hoffman v. W. Max Bossert, 94-CAA-4 (ARB Aug. 8, 1997), the ARB disallowed or reduced charges for items on an attorney fees petition for

• attorney time to hand deliver briefs where either courier service or overnight mail was available
• receipt of the ALJ's recommended decision and a decision of the Secretary, since receiving a document is a ministerial task. (the ARB, however, allowed charges for reviewing the ALJ's and the Secretary's decisions)
• excessive time for the tasks listed (e.g., reviewing DOL procedural rules for filing briefs, revising a service list, attorney time to walk to a law library to look up proper citations)

In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), the tribal council for the Osage Nation discharged an environmental inspector with responsibility for monitoring and reporting on Respondent's compliance with certain provisions of the SDWA, for "disloyalty" and "misconduct" -- reasons that were found to be pretextual where there was evidence that the reason for the discharge was friction that had developed because of Complainant's conscientious and vigorous enforcement of the SDWA. The ALJ recommended an award of $60,000 in punitive damages in light of his finding of "blatant and obvious discrimination" against Complainant.

The Board agreed with the ALJ's characterization of Respondent's misconduct, but declined to award punitive damages because of its finding that Respondent "was wrongly operating under the assumption that it was not subject to the employee protection provisions of the SDWA." Respondent had contended that it had tribal immunity. The Board wrote that Respondent "is now on notice that it must comply," and that because it fully expects future compliance, punitive damages were not necessary to deter further violations or to punish a few agents of the Osage Nation.

In discussing whether to grant an interlocutory appeal relating to the alleged breach of a settlement agreement that had been reached prior to completion of a Wage and Hour investigation, the ARB in Beliveau v. Naval Undersea Warfare Center, 97-SDW-1 and 4 (ARB Aug. 14, 1997) wrote:

Complainant also argues that the Board should now assume jurisdiction over this matter because the Board, acting for the Secretary of Labor, "is specifically required under several of the environmental statutes referenced in [Complainant's] 1995 complaint to be a party to any settlement resulting in the dismissal of a complainant." ... It is true that the Secretary and the Board are specifically charged with being a party to settlement agreements under certain of the Acts. However, this authority is exercised only under the circumstances where a settlement is reached between the parties after an appeal of a Department of Labor investigative agency (Wage and Hour or OSHA) finding to the Office of Administrative Law Judges, or where a settlement is entered after issuance of an ALJ's recommended order and such matter is before the Board for review. Complainant has cited no authority to support the proposition that either an ALJ or this Board may reopen and void a settlement agreement reached during the administrative investigation stage of a whistleblower complaint.

Slip op. at 3.

In McDowell v. Doyon Drilling Services, Ltd., 96-TSC-8 (ARB May 19, 1997), a case arising under the employee protection provisions of the CAA, SWDA, TSCA and FWPCA, the parties submitted a Memorandum of Settlement seeking approval of the settlement and dismissal of the complaint. The settlement had not been submitted to the ALJ, and the ARB issued an order instructing the parties to submit their settlement for review. The parties declined, claiming that submission of the settlement agreement would constitute a de facto waiver of the confidentiality provision of the agreement.

The Board held that it must review the settlement to determine whether the terms are a fair, adequate and reasonable settlement of the complaint -- that "[a]pproval by the Secretary, or her designee, the Board, is a necessary component of an enforceable settlement. We simply cannot approve a settlement that we have never seen." The ARB therefore remanded the matter to the ALJ to provide the parties an opportunity to submit its settlement for approval.

[Editor's note: The parties had originally submitted to the ALJ an "Unopposed Motion, Memorandum and Order for Dismissal of Complaint for Cause," arguing that submission of the settlement was not necessary as there was no question of Complainant being "gagged" or in any way prevented from furnishing information to government agencies or authorities regarding environmental concerns raised in the complaint. The parties argued that "[t]he private settlement agreement between [Complainant] and [Respondent] requires confidentiality as to the terms and conditions of the settlement only, not as to any other matters such as the specifics of the environmental concerns which precipitated [Complainant's] Whistleblower complaint." In his Recommended Order recommending dismissal, the ALJ implied that a complainant could just not show up for the hearing, and that the matter would then be dismissed following issuance of an order to show cause under 29 C.F.R. § 24.5(e)(4). See McDowell v. Doyon Drilling Services, Ltd., 96-TSC-8 (ALJ Jan. 13, 1997).

On remand, the parties submitted a settlement and asked for treatment of the settlement as confidential commercial information pursuant to 29 C.F.R. § 70.26(b). See McDowell v. Doyon Drilling Services, Ltd., 96-TSC-8 (ALJ June 18, 1997)]

In McDowell v. Doyon Drilling Services, Ltd., 96-TSC-8 (ARB May 19, 1997), the parties requested that they be allowed to submit their settlement agreement "under seal." The ARB denied this request, noting that the parties' submissions in whistleblower cases under 29 C.F.R. Part 24 become part of the record in the case and that the Freedom of Information Act, 5 U.S.C. § 552 (1988), requires federal agencies to disclose requested records unless they are exempt from disclosure under that Act. The ARB noted the existence of DOL regulations that provide specific procedures for responding to FOIA requests, for appeals by requestors from denials of such requests, and for protecting the interests of submitters of confidential commercial information. See 29 C.F.R. Part 70.

In Rigby v. Washington Public Power Supply System, 97-ERA-12 (ALJ Aug. 22, 1997), the ALJ found that the affidavit of Respondent's general counsel that the settlement agreement and its terms include nonpublic commercially sensitive information that would cause substantial competitive harm to Respondent if disclosed, substantially complied with the USDOL regulatory procedures for predisclosure notification at 29 C.F.R. § 70.26(b).

In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), the ARB held that a whistleblower is not required to exhaust his tribal remedies before filing an SDWA whistleblower complaint with the Department of Labor.

In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), the ARB adopted the ALJ's finding that Respondent discharged Complainant in contravention of the employee protection provision of the SDWA. Respondent, the duly elected government of the Osage Nation asserted sovereign immunity. The Board citing Phillips Petroleum Co. v. U.S. Environmental Protection Agency, 803 F.2d 545, 553 (10th Cir. 1986), found that the SDWA covers Indian lands. In addition, the Board held that SDWA authorizes private whistleblower suits against Indian tribes, finding that the SDWA clearly and expressly provides that "any employee" may bring a claim against "any person" for a violation of its whistleblower protection provisions.

In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), Respondent was the tribal council for the Osage Nation. The ARB rejected Respondent's assertion that the ALJ's recommended decision and order finding that Respondent discharged Complainant in contravention of the employee protection provision of the SDWA "seeks impermissibly to assess a monetary judgment against funds held in trust for individual Osage tribal members by the United States." The Board held that it expected Respondent "to comply with our order using funds that are lawfully available for satisfaction of [Complainant's] legal claim."

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was his contact with the Massachusetts Department of Environmental Protection (DEP) relating to the lack of a current vehicle identification card in a truck Complainant was assigned for a specific load. Although Complainant was advised to take a different truck upon reporting the problem to a supervisor, Complainant later telephoned DEP anyway.

The Board stated that it was "concerned any time that an employer faults an employee for seeking information from, or making a complaint to, a government agency such as DEP.... Here, even though [Complainant] received an acceptable response from [Respondent's] employees -- that he should drive a different truck rather than the one that lacked a vehicle identification card -- he still had the right to speak with DEP concerning a safety issue with that agency's purview. We find therefore that one of the articulated reasons for the second discharge directly violated the STAA." Slip op. at 7 (citations omitted).

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was bucking the agreed-upon chain of command. The Board wrote that "an adverse action taken because an employee circumvented the chain of command to raise a safety issue would violate the employee protection provision [of the STAA]" Slip op. at 7 (citations omitted).

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997), Complainant was awarded $30,000 in compensatory damages were there was unrefuted evidence that Complainant experience severe emotional distress because of relocation to a different state to take a lower paying job, concerns for his family's survival, difficulties with his marriage, and ongoing peptic ulcer disease -- all proximately caused by his unlawful discharge by Respondent.

In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997), Complainant was entitled to full pay during the period of training and awaiting the results of a DOT-required physical examination prior to being assigned to drive.

A pro se complainant is not entitled to an attorney fee award. Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34 (ARB Aug. 8, 1997).