WHISTLEBLOWER
NEWSLETTER United States Department of Labor Office of Administrative Law
Judges Law Library
September 3,
1997
This newsletter covers materials that became available during the period from
August 4 to September 3, 1997.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER
DECISIONS
[N/E Digest V B]
IF COMPLAINANT FAILS TO ESTABLISH PRIMA FACIE CASE, WAGE &
HOUR OR OSHA INVESTIGATION IS TERMINATED IN ERA,
POST-1992-AMENDMENTS COMPLAINT
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.
[N/E Digest VIII B 3]
INTERLOCUTORY APPEALS
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).
[N/E Digest XI A 2 b ii]
CAUSATION; PROXIMITY IN TIME
"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).
[N/E Digest XI C 2 a]
PRETEXT; ACTING IN HASTE ON COMPLAINTS FROM PERSONS WHO HAD AN
AX TO GRIND WITH COMPLAINANT AND EPA
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."
[N/E Digest XII D 5]
PROTECTED ACTIVITY; REPORTING VIOLATIONS IN COURSE OF REGULAR
DUTIES
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.
[N/E Digest XIII B 7]
ADVERSE ACTION; ANTICIPATORY VIOLATION OF SETTLEMENT
AGREEMENT
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.
[N/E Digest XVI E 3 d v]
ATTORNEY FEES; DISALLOWANCES
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)
[N/E Digest XVI F]
EXEMPLARY DAMAGES; BLATANT AND OBVIOUS DISCRIMINATION
BALANCED AGAINST RESPONDENT'S BELIEF THAT IT WAS NOT SUBJECT TO
WHISTLEBLOWER LAWS
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.
[N/E Digest XVII E 1]
SETTLEMENTS; NO ALJ OR ARB REVIEW OF AGREEMENTS REACHED PRIOR
TO COMPLETION OF INVESTIGATORY STAGE
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.
[N/E Digest XVII E 1]
SETTLEMENT; REQUIREMENT OF SUBMISSION TO DOL
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)]
[N/E Digest XVII E 2]
SETTLEMENT; REQUEST THAT SETTLEMENT BE SUBMITTED UNDER
SEAL
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.
[N/E Digest XVII E 2]
SETTLEMENT; ADEQUACY OF AFFIDAVIT OF RESPONDENT'S GENERAL
COUNSEL TO INVOKE RIGHT TO PREDISCLOSURE NOTIFICATION UNDER DOL
FOIA REGULATIONS
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).
[N/E Digest XX D]
EXHAUSTION OF TRIBAL REMEDIES
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.
[N/E Digest XX E]
TRIBAL IMMUNITY
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.
[N/E Digest XX E]
TRIBAL TRUST FUNDS
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."
[STAA Digest IV B 2 e ]
ARTICULATED REASON FOR DISCHARGE; CONTACT WITH GOVERNMENT
AGENCY
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).
[STAA Digest IV B 2 e]
ARTICULATED REASON FOR DISCHARGE; CIRCUMVENTING THE CHAIN OF
COMMAND
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).
[STAA Digest IX B 1]
COMPARATIVE AWARD; SEVERE EMOTIONAL DISTRESS
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.
[STAA Digest IX B 2 b]
BACK PAY; ENTITLEMENT TO FULL PAY DURING TRAINING AND EXAM
RESULT PERIOD PRIOR TO NEW ASSIGNMENTS UPON REINSTATEMENT
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.
[STAA Digest IX C]
ATTORNEY FEES; PRO SE COMPLAINANT