Office of Administrative Law Judges
United States Department of Labor
November 29, 1995
This newsletter covers the materials that became available during
the period from October 5 to November 28, 1995.
ADVERSE ACTION; NONSELECTION; COMPLAINANT'S BURDEN [N/E Digest XIII B 8]
An employer's nonselection of a complainant for employment
does not necessarily constitute an adverse employment action; an
employer is free not to hire any individual absent a
discriminatory reason proscribed by law. Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct.
23, 1995), citing Samodurov v. General Physics Corp., 89-
ERA-20, slip op. at 10 (Sec'y Nov. 16, 1993). In
Frady, the Complainant was required to establish in
this regard that he was qualified; that despite his
qualifications, he was rejected; and that the Respondent
continued to seek and/or select similarly qualified applicants.
The Complainant applied for several positions, and carried
his burden in regard to several. In regard to one position,
however, he was unable to establish discriminatory nonselection
where the Respondent established that the Complainant would not
have been selected in view of the superior qualifications of the
candidates who were selected.
In regard to another position, the Respondent presented
testimony that the decision was made not to fill an inspector
position applied for by the Complainant because of downsizing
concerns. The Complainant established that he was clearly
qualified for the position, and that at least two inspectors were
returned to work after the vacancy announcement had been
cancelled. Although the two other inspectors were returned to
work pursuant to settlement of ERA complaints, the Secretary held
that [t]he fact that these inspector positions were not filled
in the usual course of business . . . does not undermine the
conclusion that the pressures of downsizing . . . were not
determinative of [the] decision not to fill the inspector
position [at the time the Complainant applied for it]. Slip op.
at 36 n. 26.
ADVERSE ACTION; COMPANY CAR; COMPANY POLICY [N/E Digest XIII B 5]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Complainant contended that removal
of his company car when he was assigned to Senior Reactor
Operator school violated the employee protection provision the
ERA. The Secretary, however, found that the Complainant failed
to overcome the Respondent's evidence that other employees with
status equal to the Complainant's also lost their company cars
while attending SRO school, although there was evidence that a
more senior employee did not. The Respondent explained that the
Complainant's car was provided because he was required to go to
the plant at unusual hours, while the senior employee's car was
part of his compensation package.
ADVERSE ACTION; LOWER RATING, EVEN IF STILL GOOD, IS ADVERSE
ACTION IF IT HAS AN ADVERSE IMPACT [N/E Digest XVIII B 17]
In Boytin v. Pennsylvania Power & Light
Co., 94-ERA-32 (Sec'y Oct. 20, 1995), the ALJ too
narrowly defined the adverse action element of a retaliation case
where he concluded that the Complainant's general performance
rating was in the good range, and accordingly the Complainant was
not harmed with regard to his career or salary, or the terms of
his employment. The Secretary found that the Complainant's lower
fractional rating resulted in nominally lower salary increases
relative to comparable employees and that the Respondent was in
tight financial situation and that comparative fractional ratings
could have a bearing during a reduction in force. More
importantly, however, the Secretary found that the Complainant s
protected activity had the adverse impact of adversely affecting
his working conditions. The Secretary noted that the stress of
the hostile work situation caused the Complainant to take
additional sick leave, and the use of sick leave was subsequently
determined to be a negative factor regarding the Complainant s
dependability. The Secretary held that it was not necessary to
analyze the complaint as a hostile work environment case because
the actions of the Respondent caused tangible job detriment.
Citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 64
(1986). The Secretary noted that the ERA must be broadly
construed to prevent retaliatory intimidation of workers, and
that [t]his breath of construction includes the form that the
discriminatory actions against the employee may take and goes
beyond a measurable dollar loss, although that criterion is in
fact met in this case.
ATTORNEY FEES; REASONABLENESS OF MOTION TO REOPEN [N/E Digest XVI E 4 b]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary held that, in view of the
ALJ's recommended decision dismissing the complaint, which the
Secretary rejected, the Complainant's attorney's fees and costs
associated with requests to reopen and supplement the record were
reasonably incurred in bringing the complaint, even though some
of the requests were denied as unnecessary in light of the
disposition of the case.
ATTORNEY MISCONDUCT; IMPROPRIETY OF INTERRUPTION OF
TESTIMONY [N/E Digest IX M 2]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary noted, with
apparent disapproval, the conduct of counsel in interrupting
testimony to interject their own testimony. Citing 29 C.F.R.
§ 18.36 (standards of conduct) and § 18.37 (hearing
room conduct).
BACK PAY; WORK AVAILABILITY [STAA Digest IX B 2 b xvi]
In Ass t Sec'y & Mulanax & Andersen v. Red
Label Express, 95-STA-14 and 15 (Sec'y Nov. 1, 1995), the
ALJ rejected the Respondent's argument that it was not liable for
back pay during the period in which one of the Complainants had
been under the age of 21, which is the minimum age required for
drivers under D.O.T. regulation 49 C.F.R. § 391.11(b),
citing and distinguishing McKennon v. Nashville Banner
Publishing Co., 115 S.Ct. 879 (1995). The Secretary,
however, agreed with the Assistant Secretary's appellate brief in
which it was contended that the Complainant, although not old
enough to drive a commercial motor vehicle, was eligible to drive
other vehicles operated by the Respondent, as he in fact had been
doing prior to being terminated from employment. The Secretary
thus found that the Respondent had failed to establish that the
Complainant was either unwilling or unable to perform his
customary work with the Respondent.
The Secretary, in a footnote, observed without comment the
Assistant Secretary's alternative argument that in situations
where the employee's work would subject him or her to the DOT age
requirement, the decision of the Supreme Court in Sure-Tan,
Inc. v. National Labor Relations Board, 467 U.S. 883 (1984)
(illegal alien case), rather than McKennon, provides
guidance.
BACK PAY; TOLLING UPON COMPLAINANT'S EMPLOYMENT AT A HIGHER
PAYING JOB [STAA Digest IX B 2 b]
Where the Complainant had obtained higher paying employment
prior to receipt of a reinstatement offer from the Respondent it
was unnecessary for the ALJ to reach the question of the date the
reinstatement offer was properly made to the Complainant by the
Respondent for purposes of calculating back pay. The other
employment tolled the Respondent's liability for back pay.
Ass t Sec'y & Mulanax & Andersen v. Red Label
Express, 95-STA-14 and 15 (Sec'y Nov. 1, 1995).
BACKPAY; PROCEEDINGS ON REMAND [N/E Digest XVI C 1]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary noted that the record
reflected the Complainant's monthly salary at the time of
discharge, but did not include a calculation of the exact amount
of back pay owed (e.g., salary increases). The Secretary
remanded to the ALJ for "further proceedings he deems
necessary in this regard and for a recommended decision setting
forth the amount of back pay."
BACKPAY; ENTITLEMENT TO SALARY INCREASES [N/E Digest XVI C 2 d]
The calculation of backpay should include any salary
increases that reasonably would have occurred in the period
between the complainant's discharge and his or her reinstatement.
SeeMosbaugh v. Georgia Power Co., 91-ERA-1
and 11 (Sec'y Nov. 20, 1995).
BLACKLISTING; MUST BE EVIDENCE OF INTENTIONAL
INTERFERENCE [N/E Digest XIII B 1]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Complainant was unable to
establish a claim of blacklisting where there was no evidence
that any employee of the Respondent had intentionally interfered
with any employment opportunity that the Complainant may have had
available through a contractor that provided inspectors to the
Respondent.
BLACKLISTING; REQUIREMENT OF ADVERSE ACTION [N/E Digest XIII B 1]
Where the Respondent's executive vice-president sent letters
to each of its contractors about discriminatory employment
actions, and in a follow-up letter, requested that he be informed
of any discrimination complaints brought against any contractor,
but the Complainant was not named in the letters, and the
correspondence and the context in which it arose revealed only a
positive effort to guard against the harassment of employees, the
Secretary rejected the Complainant's blacklisting complaint for
lack of adverse action. Bausemer v. TU Electric,
91-ERA-20 (Sec'y Oct. 31, 1995).
BURDEN OF ARTICULATION; PRODUCTION NOT PERSUASION [N/E Digest XI B 1]
When the burden shifts to the respondent to articulate a
legitimate nondiscriminatory reason for failing to hire a
complainant, the employer need not persuade the court -- the
burden is only of production. Bausemer v. TU
Electric, 91-ERA-20 (Sec'y Oct. 31, 1995), citing Kahn
v. United States Secretary of Labor, 64 F.3d 271, 278 (7th
Cir. 1995). In Bausemer, the Respondent's
articulated reason for not hiring the Complainant, implementation
of a "Staff Augmentation Program" (an effort to reduce
cost of employees supplied by contractors by negotiated
selection), was sufficient to dissolve the Complainant's prima
facie case and place the burden on the Complainant to prove that
the proffered reason was pretext. Although there was some
evidence that the Staff Augmentation Program involved a degree of
manipulation, the Secretary concluded that the Respondent's
motivation was continuity of operation rather than retaliation
against the Complainant.
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary stated that [i]t
is well established that, in employee protection cases, [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. " Ellis Fischel State Cancer Hospital
v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), quoted in
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1162 (9th Cir. 1984).
CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATORY INTENT [N/E Digest XI E 3]
The complainant need not have any specific knowledge that the
respondent's officials had an intent to discriminate against the
complainant; ERA employee protection cases may be based on
circumstantial evidence of discriminatory intent. Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34, slip op. at
10 n. 7 (Sec'y Oct. 23, 1995).
COMPENSATORY DAMAGES; EMOTIONAL IMPACT; EXPERT TESTIMONY;
PROCEEDINGS ON REMAND [N/E Digest VII D 2 and XVI D 2 b]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary noted that the ERA
whistleblower provision authorizes compensatory damages for a
complainant's pain and suffering. The Secretary stated that
"[t]he very fact of being discharged in violation of the ERA
may have a serious emotional impact on a complainant. . . .
Although a complainant may support his claim of pain and
suffering with the testimony of medical and psychiatric experts,
it is not required." Slip op. at 18 (citations omitted).
In Mosbaugh, the Complainant had testified
about his anguish over losing his job and remaining unemployed
for a lengthy time. In addition, the Complainant had attempted
to offer the testimony of an expert witness, but the ALJ accepted
a written offer of proof in lieu of permitting the testimony.
The ALJ did not make a recommendation on damages, however,
because he had recommended a finding that the Respondent did not
violate the ERA.
The Secretary, finding that there had been a violation of the
ERA, remanded to the ALJ for a recommendation on compensatory
damages, directing him to permit the examination and cross-
examination the expert concerning stress, emotional distress, and
related subjects.
COMPLAINANT'S BURDEN; NOT HIGHER WHEN RESPONDENT WAS ENGAGED
IN REDUCTION-IN-FORCE [N/E Digest XI E 6]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary rejected the
Respondent's position that age discrimination decisions of the
Sixth Circuit subject a complainant to a higher standard of proof
when challenging a termination that occurs in the course of a
reduction in force. See LaGrant v. Gulf & Western Mfg.
Co., 748 F.2d 1087 (6th Cir. 1984) (ADEA) and its progeny.
The Secretary noted that the Sixth Circuit had clearly indicated
that the McDonnell Douglas test must be applied ad
hoc in each case, that the Complainant was not challenging a
termination but a nonselection for employment, and that reliance
on the line of ADEA cases was ill founded because age
discrimination is rarely based on the sort of animus motivating
other types of discrimination, citing EEOC v. Wyoming, 460
U.S. 226, 231 (1983).
CREDIBILITY DETERMINATIONS; REQUIREMENT THAT ALJ EXPLICITLY
STATE WHAT EVIDENCE IS ACCEPTED OR REJECTED [N/E Digest X E 1]
To be sustained, all factual findings, including credibility
determinations, must be supported by substantial evidence on the
record considered as a whole. Where a factfinder's credibility
determinations are not based on adequate reasons, his or her
findings cannot be upheld. All relevant, probative and available
evidence must be weighed by the factfinder who must make explicit
statements as to what portions of the evidence are accepted or
rejected. A full explanation of why specific evidence was
rejected is imperative, since a factfinder cannot reject
evidence for no reason or for the wrong reason. Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct.
23, 1995), quoting Cotter v. Harris, 642 F.2d 700, 706-07
(3d Cir. 1979).
CREDIBILITY DETERMINATIONS; SCOPE OF DEFERENCE TO DEMEANOR
FINDINGS VERSUS FINDINGS BASED ON SUBSTANCE OF TESTIMONY [N/E Digest VIII B 2 a and X E 2]
Credibility findings that are explicitly based on the
demeanor of the witnesses may be accorded exceptional weight by a
reviewing court. These demeanor findings are distinct from
credibility findings based on the substance of the testimony
itself, e.g., internal inconsistency, inherent
improbability, important discrepancies, impeachment, and witness
self-interest. Frady v. Tennessee Valley
Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
DUAL MOTIVE; WHEN IMPLICATED; COMPLAINANT'S BURDEN [N/E Digest XI D 1]
In Bausemer v. TU Electric, 91-ERA-20 (Sec'y
Oct. 31, 1995), the Secretary declined to apply the dual motive
analysis applied in Mt. Healthy City School Dist. Bd. of Edu.
v. Doyle, 429 U.S. 274, 287 (1977), where the Complainant
"did not prove by a preponderance of the evidence that
Respondent was motivated by an illegitimate reason."
DUAL MOTIVE ANALYSIS; WHEN IMPLICATED; EVIDENCE OF HIGH
DEGREE OF PERSONAL ANIMOSITY [N/E Digest XI D 2]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Respondent contended that it
declined to fill a position for which the Complainant had applied
based on pressures to downsize. Where the record indicated that
the Complainant had a number of antagonistic exchanges with the
employee who made the decision not to fill the position, the
Secretary concluded that the degree of animus exhibited indicated
that the decision not to fill the position was based at least in
part on discriminatory intent.
ENFORCEMENT OF SETTLEMENT; OBLIGATION OF EMPLOYER TO TREAT
COMPLAINANT FAIRLY IN FUTURE HIRING SITUATIONS NOT MEET MERELY BY
SUPPLYING LETTER OF RECOMMENDATION [N/E Digest XVII G 4]
In Bausemer v. TU Electric, 91-ERA-20 (Sec'y
Oct. 31, 1995), although the Secretary dismissed the
Complainant's ERA complaint, he noted that the Respondent had not
meet the responsibility imposed by an earlier settlement
agreement to treat the Complainant fairly and equitably in future
hiring decisions merely by supplying the Complainant with a
letter of recommendation.
EQUITABLE TOLLING; DUE DILIGENCE REQUIREMENT; REASONABLE
PERSON TEST [N/E Digest IV C 3]
The ERA limitations period is not jurisdictional and is
subject to modification, for example by equitable tolling which
"permits a plaintiff to avoid the bar of the statute of
limitations if despite all due diligence he is unable to obtain
vital information bearing on the existence of his claim."
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990), cert. denied, 501 U.S. 1261 (1991) (Age
Discrimination in Employment Act of 1967). Where the Complainant
was injured in July 1990 to the extent that he had not been
offered a job, but he did not necessarily know that the injury
was due to wrongdoing on the part of the Respondent until he,
with due diligence, proceeded to obtain information suggesting
that he had not received impartial consideration, equitable
tolling was applied. The Secretary applied a reasonable person
test in regard to whether a person in the complainant's position
would have known that the injury was related to retaliation,
noted that equitable tolling can suspend the running of the
statute of limitations for such time as was reasonable necessary
to conduct an inquiry, and observed that a complainant only need
be aware of a possible violation. Bausemer v. TU
Electric, 91-ERA-20 (Sec'y Oct. 31, 1995).
FRONT PAY WHERE REINSTATEMENT DOES NOT APPEAR TO BE IN THE
COMPLAINANT'S BEST INTERESTS [N/E Digest XVI B 4]
In Boytin v. Pennsylvania Power & Light
Co., 94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary noted
that he had not yet ruled on the appropriateness of an award of
front pay in whistleblower cases where reinstatement does not
appear to be in the complainant's best interests. He noted that
the issue in now pending before him in Creekmore v. ABB Power
Systems Energy Services, Inc., 93-ERA-24, in which the ALJ
recommended front pay.
HEARSAY; DISCUSSION OF COMPLAINANT'S PROTECTED ACTIVITIES
AMONG MANAGERS [N/E Digest X L]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ
erred in sustaining objections to testimony adduced for the
purpose of showing the degree to which the Complainant s
protected activity was discussed among the Respondent's managers,
noting that hearsay only involves statements offered to prove
the truth of the matter asserted, 29 C.F.R. § 18.801(c), and
that then existing mental, emotional or physical conditions are
not excluded by the hearsay rule. 29 C.F.R. § 18.803(a)(3).
INTERNAL COMPLAINTS; COMPLAINANT'S UNSUPPORTED ASSERTIONS [STAA Digest V B 1 a]
Internal complaints to management are protected activity
under the whistleblower provision of the STAA; the complainant,
however, must prove by a preponderance of the evidence that he
actually made such an internal complaint. In Williams v.
CMS Transportation Services, Inc., 94-STA-5 (Sec'y Oct.
25, 1995), the Complainant failed to carry that burden where
there was no evidence or written documentation supporting the
Complainant's allegations that he made internal complaints.
KNOWLEDGE OF PROTECTED ACTIVITY; COMMON KNOWLEDGE OF
MANAGERS; SUSPICION OF PROTECTED ACTIVITY [N/E Digest XI A 2 c]
To establish the requisite element of knowledge in regard to
nonselection for a position, the complainant must establish that
an employee of the respondent who had substantial input into the
selection decision had knowledge of the protected activity at the
time the selection decision was made. Frady v. Tennessee
Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
In Frady, the Complainant meet that burden by
establishing that knowledge of his protected activity was
widespread among the Respondent's managers. The Secretary
concluded that at least one member of the selection committees
strongly suspected, if he did not indeed know, that the
Complainant had engaged in protected activity at the time of the
committee selection proceedings.
See also slip op. at 38, in regard to another position that
was advertised but not filled, but evidence that the employee
responsible for the nonselection strongly suspected that the
Complainant had applied, and any uncertainty in the record did
not preclude a finding of retaliatory motive.
MOTIVE; COMPLAINT'S MOTIVE; RESPONDENT'S MOTIVE;
BLACKMAIL [N/E Digest XII C 3]
In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1
(Sec'y Nov. 1, 1995), the Complainant presented a letter to the
Respondent's owner complaining about the company (a non-hazardous
waste facility) generally and about various alleged environmental
violations, including a complaint about the handling of
contaminated soil. In concluding the letter, the Complainant
made several employment demands, such as a detailed written
description of his duties; a posted notice of his duties; and an
employment contract essentially doubling his current salary. The
Complainant had been hired to set up an on-site laboratory. The
owner considered this attempted blackmail, but put it aside,
refusing to accede to the employment demands and instead hiring a
different person as facility manager. The new facility manager
was experienced in hazardous waste treatment facilities.
About one month later, the new facility manager reprimanded
the Complainant for a breach of management confidentiality when
he told various employees that they could be or would be fired
soon. A few days later, the Complainant confronted the facility
manager about whether the contaminated soil should be landfilled.
At that time the Complainant presented the same letter to the
facility manager, stating, inter alia, that he did not believe
the manager had the authority or guts to fire him. The manager
called the owner, informing him that he could not continue to
work under the conditions. Five days later, the owner fired the
Complainant.
At the hearing, the Respondent contended that the Complainant
was not entitled to protection because he allowed the violations
to occur while he was collecting evidence (the Complainant had
surreptitiously tape-recorded several conversations), committed
violations himself, and essentially was using the law as a tool
of extortion. The Secretary noted that where the complainant has
a reasonable belief that the respondent is violating the law,
other motives he or she may have for engaging in protected
activity are irrelevant. Distinguishing several Federal court
decisions cited by the Respondent, the Secretary found that there
was no quid pro quo, and that the Complainant's employment
demands for a job description and more authority were related
directly to his allegations that safety violations were
occurring. There was no evidence that the Complainant allowed
violations to occur or intentionally committed violations
himself. Nor was there any evidence that plans leading to
termination of the Complainant's employment were under
consideration prior to the Complainant's whistleblowing
activities.
The Secretary found that the Respondent's purpose for firing
the Complainant was to silence the Complainant's persistent and
increasingly adamant concerns about the contaminated soil. The
Secretary noted that an employer may take action against an
employee for improper conduct in raising otherwise protected
complaints, but noting that the Respondent did not specify
intemperate language or defiant conduct as a reason for the
termination, found that the Complainant's conduct was not
indefensible under the circumstances. The Secretary indicated
that the Respondent's complaints about the Complainant's attitude
were not a defense because the attitude resulted from the
Complainant's outspoken approach and insistence that the soil was
not being handled properly. The Secretary found that the
Respondent's owner's consultation with authorities and release of
the letter to those authorities of his own volition did not
absolve it from wrongdoing in firing the Complainant.
In Delaney v. United States Dept. of Labor, NO.
95-1487 (1st Cir. Nov. 6, 1995) (unpublished) (decision available
at 1995 U.S. App. LEXIS 31284) (administrative case number 90-
TSC-2), a prison official requested that the Respondent, a prison
service contractor, transfer an inmate who was discussing his
concerns about chemical safety in the license plate shop in an
indiscrete manner. The prison official was concerned that other
inmates might react with a work stoppage or other form of
protest. The court affirmed the Secretary's conclusion that the
complaint must be dismissed because the reason for the
Complainant's subsequent transfer was not retaliation for
complaining about safety, but prison security.
NONSELECTION; INADVERTENCE OR INEFFICIENCY [N/E Digest XI B 2 c]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Complainant was not informed
of positions for temporary inspectors until after the close of
the application period. The Respondent presented testimony of an
employment services office employee who stated that she generated
a list of qualified employees by using quality in a word search
of the Respondent's computerized personnel files; by using
quality rather than nuclear she failed to include the name of
the Complainant and other nuclear inspectors. The Secretary
found that this was an adequate explanation -- the list did not
include the Complainant due to inadvertence or, at worst,
inefficiency. The Secretary also noted that the Respondent s
witnesses were exceptionally forthright and did not show animus
toward the Complainant.
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary found that the
Complainant had been discriminated against in violation of
Section 210 of the ERA when he was not selected for hire for
several positions. The Respondent was ordered to offer the
Complainant those positions or comparable positions, to pay back
pay from the date the Complainant would have started to the
actual appointment or Complainant's refusal of such offer, other
appropriate compensation (the case was remanded for a
determination by the ALJ), and costs and expenses.
PRETEXT; COMPLAINANT'S BURDEN; PRETEXT FOR NONDISCRIMINATORY
REASONS [N/E Digest XI C 1]
Where the burden shifts back to the complainant to establish
that the respondent's articulated basis for the adverse
employment action was pretextual and that the respondent's action
was actually based on a discriminatory motive, the complainant
may demonstrate pretext by showing that discrimination was more
likely the motivating factor or by showing that the proffered
explanation is not worthy of credence. The proof must go beyond
disbelief of the respondent--the factfinder must believe the
complainant's explanation of intentional discrimination.
Further, the respondent's explanation may be pretextual, but
nonetheless found to a pretext for actions other than prohibited
discrimination. Frady v. Tennessee Valley
Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
PROTECTED ACTIVITY; UNDERLYING VIOLATION; REASONABLENESS OF
COMPLAINANT'S BELIEF [N/E Digest XII C 4]
The Respondent's status as a non-hazardous waste facility and
the Complainant's inability to specify the controlling EPA
regulations were not determinative of whether the Complainant
engaged in protected activity in Oliver v. Hydro-Vac
Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995). Rather,
the question was whether the Complainant's concerns were based on
a reasonable belief that the Respondent was violating the SWDA
and FWPCA. The Secretary noted that the Complainant believed
that certain soil received by the Respondent resulting from the
removal of an underground gasoline tank was hazardous to the
environment because it contained high levels of benzene. The
Secretary concluded that the Complainant's belief that the soil
posed a danger and that the Respondent was mishandling it in
violation of the SWDA and the FWPCA was reasonable, both legally
and factually, noting that Federal case law reveals that
confusion exists in delineating hazardous waste, and
particularly in regard to contaminated soil from underground
storage tanks.
In Oliver, it subsequently was discovered that
none of the soil had been landfilled. Nonetheless, the Secretary
in reviewing the evidence found that the Complainant's belief
that the soil had been landfilled illegally was reasonable. He
noted that [f]or purposes of the whistleblower statutes, it does
not matter whether the allegation was ultimately factually
substantiated. Slip op. at 12 n.4 (citations omitted).
PROTECTED ACTIVITY; RESPONDENT'S KNOWLEDGE [N/E Digest XI A 2 d]
In Miller v. Thermalkem, Inc., 94-SWD-1 (Sec'y
Nov. 9, 1995), a manager reached a decision to fire the
Complainant for improper processing of waste and falsification of
paperwork, but gave the Complainant an opportunity to tell his
side of the story before the discharge. The manager delayed the
discharge because the Complainant, although admitting the
wrongdoing, alleged that such wrongdoing was widespread at the
facility. Because the manager had decided to fire the
Complainant prior to the protected activity of reporting other
wrongdoing, the Secretary concluded that the Complainant did not
establish the knowledge of protected activity element of the
complaint. The Secretary also concluded, that even if this was a
dual motive case, the Respondent established that it would have
fired the Complainant even if the Complainant had not made the
allegation.
PROTECTED ACTIVITY; SECRET TAPE RECORDINGS [N/E Digest XII D 12 a]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Secretary held that the Complainant
engaged in protected activity under the ERA by making lawful tape
recordings that constituted evidence gathered in support of a
nuclear safety complaint. Such tape recording are analogous to
other evidence gathering activities that are protected under
employee protection provision, such as making notes and taking
photographs that document environmental or safety complaints.
The Secretary rejected the ALJ's conclusion that the scope and
duration of the recording removed it from protection, and the
Respondent's attempt to justify the Complainant's discharge on
the ground that he could not be an effective manager once other
employees learned of his tape recordings.
PROTECTED ACTIVITY; ABOUT TO CONTACT AUTHORITIES [N/E Digest XII B 7]
In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1
(Sec'y Nov. 1, 1995), the Complainant was protected in that he
was about to contact the authorities about his concerns. 42
U.S.C. § 6971(a); 33 U.S.C. § 1367(a).
REFUSAL TO DRIVE; REQUIREMENT OF ACTUAL REFUSAL [STAA Digest V A 3 a]
An employee must actually refuse to operate a vehicle to be
protected under the refusal to drive provision of the STAA. 49
U.S.C. § 31105(a)(1)(B). Williams v. CMS
Transportation Services, Inc., 94-STA-5 (Sec'y Oct. 25,
1995).
REINSTATEMENT; DATE OFFER ENDS RESPONDENT's LIABILITY FOR
BACK PAY [STAA Digest IX A 5]
In Ass t Sec'y & Mulanax & Andersen v. Red
Label Express, 95-STA-14 and 15 (Sec'y Nov. 1, 1995), the
Respondent sent a reinstatement offer letter to the Complainant
in care of the Assistant Secretary, and the question was
presented whether the offer was effective when mailed (plus 3
days for mailing) or when the Complainant actually received the
offer. The Secretary noted that it had been made clear during
the proceedings before the ALJ that the Complainant was appearing
pro se, and that the Respondent was provided the Complainant s
correct mailing address. Since the Respondent had failed to
utilize the most expeditious means of communicating the offer to
the Complainant, and in view of the Respondent's recalcitrance in
responding to the Regional Administrator's order to reinstate the
Complainant immediately, the reinstatement offer did not serve to
toll the back pay liability as of the date of the letter.
The Secretary observed that the ALJ had rejected the
Assistant Secretary's argument that the actual date of rejection
of the reinstatement offer tolls the Respondent's back pay
liability, and that the Assistant Secretary had not renewed this
argument or challenged the ALJ's conclusion on review.
The Secretary noted, however, that [t]he determination
concerning the date on which back pay is to be tolled will turn
on the particular circumstances surrounding the offer of
reinstatement in each case. (citation omitted).
RELEVANCY OF INCIDENTS PRECEDING OR GIVING RISE TO PREVIOUS
COMPLAINT RESOLVED BY SETTLEMENT [N/E Digest X C]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ
erred in sustaining the Respondent's objections to testimony
relevant to incidents that preceded or gave rise to a previous
ERA complaint filed by the Complainant that was resolved by a
settlement agreement. Such evidence was relevant to the question
of retaliatory animus in regard to the instant complaints.
REMEDIES; TRANSFER WHERE HOSTILE WORKING CONDITION LIKELY TO
PERSIST [N/E Digest XVI B 4]
In Boytin v. Pennsylvania Power and Light Co.,
94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary concluded that,
given the hostile working conditions and degree of animus felt at
the Respondent's Susequehana facility against the Complainant for
his protected activity, the Respondent should honor the
Complainant's request for a transfer to another facility within a
30 mile radius of the his home, with equivalent pay and
supervisory group responsibilities, if possible.
REOPENING OF RECORD; DOCUMENTS COMING INTO EXISTENCE
FOLLOWING CLOSE OF HEARING RECORD [N/E Digest IX D 2]
In Mosbaugh v. Georgia Power Co., 91-ERA-1 and
11 (Sec'y Nov. 20, 1995), the Complainant sought to have certain
NRC documents relating to his whistleblower case, but which only
came into existence after the close of the record before the ALJ,
admitted into evidence. The Secretary, although stating that he
had not relied on those documents, admitted them into the record
for whatever probative value they might have. See 18
U.S.C. § 18.54(c). In regard to an NRC-OI Memorandum and
Report of Investigation, the Secretary noted the Memorandum of
Understanding Between NRC and Department of Labor, Employee
Protection, 47 Fed. Reg. 54585 (Dec. 3, 1982), in which the
agencies agreed to "timely exchange of information in areas
of mutual interest."
STAY ON REMAND PENDING JUDICIAL REVIEW [N/E Digest IX K]
In Hoffman v. W. Max Bossert, 94-CAA-4 (Sec'y
Nov. 20, 1995), the Secretary denied the Respondent's request
for an administrative stay on a remand order pending judicial
review in the United States Court of Appeals. The Secretary
found that the Respondent had failed to allege or show that he is
likely to prevail on appeal, that he will suffer irreparable
injury if not granted a stay, or that the public interest is at
stake. See Virginia Petroleum Jobbers Assn v. Federal Power
Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958); Commonwealth-
Lord Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir.
1983).
WITHDRAWAL OF COUNTS GOVERNED BY FED. R. CIV. P. 15(a) [N/E Digest II B 1 b and XVIII A 8]
Voluntary dismissal of a complaint under the ERA is governed
by Fed. R. Civ. P. 41. Withdrawal of counts within multiple
count complaints, however, is governed by Fed. R. Civ. P. 15(a),
which concerns amendments of pleadings. Frady v. Tennessee
Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
