NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up-to-date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.

[Nuclear & Environmental Digest IV C 9]
EQUITABLE TOLLING FOR MENTAL INCAPACITY

In Hall v. USDOL, No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW-9), Complainant asserted that the ARB erred as a matter of law in granting summary against his claim that equitable tolling should be applied to his untimely filing of environmental whistleblower complaints based on his mental illness during the statutory time period. The court, reviewing the matter de novo, held that its decision in Biester v. Midwest Health Servs., Inc., 77 F.3d 1264 (10th Cir. 1996), was dispositive of the issue, i.e., that mental incapacity, if a ground for equitable tolling, will be allowed only in "exceptional circumstances" such as adjudication of incompetency or institutionalization. Since Complainant was neither adjudicated incompetent nor institutionalized during the time period at issue, and the evidence showed instead that he handled, with counsel's assistance, other legal matters which required action during or soon after the thirty-day statute of limitations period, Complainant did not justify equitable tolling.

[Nuclear & Environmental Digest VII A 5]
PROTECTIVE ORDER; LIMITS ON USE OF VIDEOTAPED DEPOSITION; INTERESTS OF JUSTICE STANDARD

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), a retired manager requested that the ARB issue a protective order continuing the protection afforded by an ALJ order limiting the use of the retired manger's 1995 videotape deposition. The ARB noted that ALJ's protective order expired by its terms upon the ARB's assumption of jurisdiction, and that it was predicated on an agreement between counsel for the retired manager and Complainants, so that the videotaping could proceed although proper notice had not been given.

The ARB declined to issue a new protective order, finding that the retired manager had not shown that "issuance of such an order is required by justice under 29 C.F.R. §18.15(a), particularly since he does not oppose dissemination of the transcribed version of the identical deposition and is not subject to further burden or embarrassment because the videotape deposition has already been taken."

[Nuclear & Environmental Digest VII B 1]
SUBPOENAS; ATTEMPT BY RESPONDENT TO OBTAIN FROM EPA

In Schooley v. Chugach North Technical Services, 1998-TSC-5, Respondent requested that the presiding DOL administrative law judge issue two subpoenas for third party witnesses. Respondent noted in its request that it was concurrently seeking to have the Administrator of the Environmental Protection Agency issue subpoenas under the authority of 15 U.S.C. § 2610(c), arguing that this section of the TSCA provides express authority for EPA to issue subpoenas to carry out the whistleblower section, and that nothing in the TSCA precludes the EPA Administrator from doing so, even though the witnesses would appear in a hearing before the DOL.

The ALJ declined to issue the subpoenas, and the scheduled hearing was conducted before EPA responded to Respondent's subpoena request. The two third party witnesses did not appear to testify at the hearing.

[Nuclear & Environmental Digest VII C 1]
SUMMARY DECISION; ALJ MAY CONVERT A MOTION TO DISMISS INTO A MOTION FOR SUMMARY DECISION

In Hall v. USDOL, No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW- 9), Complainant argued that the ALJ erred by, without notice, converting Respondent's motion to dismiss into a motion for summary decision. The Tenth Circuit, found no administrative rule or regulation specifically authorizing the ALJ's action, but found that 29 C.F.R. § 18.41 is similar to FRCP 56. The court, approving the ALJ's conversion of the motion, wrote:

Federal Rule of Civil Procedure 12(b) provides that if a party makes a motion to dismiss for failure to state a claim upon which relief can be granted, and if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." We therefore find it useful to reason from Rules 12(b) and 56 and interpretive federal case law by analogy.

[Nuclear & Environmental Digest VII C 1]
SUMMARY JUDGMENT; ALJ'S RENDERING OF DECISION WITHOUT NOTICE THEREBY CUTTING OFF DISCOVERY

In Hall v. USDOL, No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW- 9), Complainant argued that the ALJ erred by, without notice, converting Respondent's motion to dismiss into a motion for summary decision. Although seven months had passed since the ALJ had instructed the parties to commence discovery, Complainant asserted that he did not conduct discovery because he did not know he would be facing a motion for summary judgment. The court, however, noting that Complainant attached affidavits and other materials to his response to the motion to dismiss, held that "[a] party who submits material beyond the pleadings in opposition to a motion to dismiss cannot complain of undue surprise if the district court treats the motion as a summary judgment motion." (citation omitted).

[Nuclear & Environmental Digest VII C 1]
DISCOVERY; ALJ DOES NOT ABUSE HIS OR HER DISCRETION IN LIMITING DISCOVERY PRIOR TO RULING ON JURISDICTIONAL UNDERPINNINGS OF CASE

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), the presiding ALJ did not permit Complainants to engage in discovery of Case Review and Analysis sheets [hereafter "reports"] that they had prepared in the course of their work, prior to the ALJ's ruling on Respondent's challenges to the jurisdictional underpinnings of the case. Complainants alleged that they needed the discovery because of the great number of reports prepared by them during the course of their work. The ARB held that the ALJ's limit on discovery was neither arbitrary nor an abuse of discretion because discovery of the reports would merely have provided further details regarding Complainant's alleged protected activity criticisms of Respondents' implementation and enforcement of federal personnel security clearance requirements and procedures. The ARB found that additional discovery would not have changed the nature of the Complainants' protected activities claim, or whether such activities were protected under the environmental whistleblower laws.

[Nuclear & Environmental Digest VII D 2]
ADMISSION OF EVIDENCE; IRRELEVANT DOCUMENTS

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants' requested to supplement the record before the ARB, which was considering on review the issue of whether Complainants' had stated a claim under various whistleblower provisions. The documents submitted included a variety of materials such as a GAO report on nuclear employee safety concerns; DOE memos and reports; a letter from the Secretary of Energy to the Chairman of a House oversight committee; various newspaper articles involving reported harassment of nuclear couriers; a law review article questioning ALJ independence; and a law review on human experimentation at the Hanford nuclear site. The ARB found these documents to be irrelevant and declined to reopen the record for their admission. Complainants also submitted an autopsy report on the presiding ALJ, who died several months after issuing the recommended decision, ostensibly to demonstrate that the ALJ was in some way unbalanced and therefore her rulings tainted. The ARB, finding nothing in the record to suggest impropriety by the ALJ, excluded the autopsy report and Complainants' counsel's submission letter from the record, observing that the ALJ's ruling stand or fall on their merits, and that counsel should have known that the autopsy report was completely irrelevant.

[Nuclear & Environmental Digest VIII B 1 b]
REQUEST FOR ARB REVIEW; EFFECT OF FAILURE TO SERVE CHIEF ADMINISTRATIVE LAW JUDGE

In Pawlowski v. Hewlett-Packard Co., 1997-TSC-3 (ARB Sept. 15, 1999), the Respondent timely filed a petition for review with the ARB of the ALJ's recommended decision, but failed to serve the Chief ALJ until after Complainant filed a motion to dismiss based on the lack of service on the Chief ALJ.

The ARB found that the governing regulation at 29 C.F.R. § 24.8, while presuming that the petition for review be filed on the ARB and the Chief ALJ simultaneously, does not so require. Further, the ARB noted that there was no showing of prejudice by Complainant by the failure to serve the Chief ALJ within the regulatory time period for filing ARB review.

[Nuclear & Environmental Digest VIII B 1 b]
PETITION FOR REVIEW BY ARB; ERRONEOUS FILING OF PETITION WITH CHIEF ADMINISTRATIVE LAW JUDGE; EQUITABLE TOLLING

In Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 1998-ERA-19 (ARB Nov. 8, 1999), the ALJ issued a recommended decision on the merits on June 9, 1999, and a recommended decision on attorney's fees on August 16, 1999. When preparing its petition for review by the ARB on the attorney's fee decision, Respondent realized that it had erroneously directed its earlier petition for review of the decision on the merits to the Chief ALJ.

The ARB applied principles of equitable tolling to accept the untimely petition for review on the merits decision on the merits based on the ground of timely appeal in the wrong forum. The ARB observed that Respondent put Complainant on notice that it intended to file a petition for review with the ARB within the ten-day period provided in 29 C.F.R. § 24.8 when it erroneously filed its petition with the Chief ALJ; that Complainant did not demonstrate that he was prejudiced by Respondent's error; and that the case did not involve a stale claim, nor a petitioner who has "slept on [its] rights." See Burnett v. New York Railroad Co., 380 U.S. 424, 428 (1965).

[Nuclear & Environmental Digest VIII B 1 b]
REQUEST FOR ARB REVIEW; LATE FILING NOT JURISDICTIONAL BAR; FILING ACCEPTED WHERE RESPONDENT DID NOT DEMONSTRATE THAT IT WAS PREJUDICED BY THE LATE FILING AND COMPLAINANT DID NOT SLEEP ON HIS RIGHTS

In Duncan v. Sacramento Metropolitan Air Quality Management District, 1997-CAA-12 (ARB Sept. 1, 1999), Complainant filed a request for review of the presiding ALJ's recommended decision within 10 business days of the date of the recommended decision, but erroneously filed it with the Chief ALJ. Under the governing regulation at 29 C.F.R.§ 24.8, the petition for review should have been filed directly with the ARB. The Chief ALJ issued a notice of improper filing, and within 10 business days thereafter, the Complainant filed a petition for review with the ARB.

The ARB found that the time period stated in section 24.8 was not jurisdictional, but instead procedural in nature, comparable to a statute of limitations that may be tolled for equitable reasons. Thus, in the instant case where Respondent did not demonstrate that it was prejudiced by the late filing, the claim was not stale, and Complainant did not sleep on his rights, the ARB accepted the petition for review.

[Editor's note: The ARB made a similar ruling in a Davis-Bacon Act case, Superior Paving & Materials, Inc., ARB No. 99-065, ALJ No. 1998-DBA-11 (ARB Sept. 3, 1999) (ARB ruled that 29 C.F.R. 6.3(b), which permits an additional five days for filings by mail before OALJ, did not apply to filings with the ARB under 29 C.F.R. § 6.34, but also ruled that the Prime Contractor's petition for review of the ALJ's decision would be accepted because section 6.34 is not jurisdictional, the Deputy Commissioner did not demonstrate prejudice, the Prime Contractor's error was only three days late based on its incorrect reading of the regulations, and there was no allegation that it had previously failed to comply with deadlines assigned by the ALJ)].

[Nuclear & Environmental Digest VIII B 2 c]
AMENDMENT OF COMPLAINT; TIMING

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants raised the applicability of the employee protection provision of the STAA to the proceeding for the first time in a letter to the ARB. The ARB held that since the applicability of the STAA was not raised in the individual complaints or before the ALJ, it would not be considered in the Board's decision.

[Nuclear & Environmental Digest VIII B 3]
INTERLOCUTORY APPEAL; ARB PARTICULARLY CHARY OF INTERFERING WITH ALJ'S CONTROL OVER TIME, PLACE AND COURSE OF HEARING

The ARB, in Hasan v. Commonwealth Edison Co., ARB No. 99-097, ALJ No. 1999-ERA-17 (ARB Sept. 16, 1999), denied Complainant's "Emergency Motion" to reverse the ALJ's order granting a change of location for the administrative hearing. The ALJ had changed the location of the hearing from Alabama (which was within 75 miles of Complainant's residence) to Chicago, upon concluding that the least of amount of inconvenience to parties and witnesses would result if Chicago was the hearing location. The ALJ acknowledged inconvenience to Complainant, but found that such inconvenience was overridden by Respondent's offer to pay Complainant's airfare, lodging, and a per diem.

The ARB held that Complainant's motion was, in effect, an interlocutory appeal of the ALJ's Order Granting Change of Venue. In denying the motion, the ARB observed that it is "particularly chary of interfering with an ALJ's control over the time, place and course of a hearing, but rather should support the sound exercise of an ALJ's broad discretion in this area. See 29 C.F.R. §24.6(c); 29 C.F.R. §18.27(c) (1996)."

[Nuclear & Environmental Digest VIII B 5]
QUO WARRANTO HEARING; APPEARANCE OF IMPROPRIETY WHERE ALLEGATION MADE THAT ARB MEMBER ENGAGED IN EX PARTE COMMUNICATION

In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 14, 1999), Complainant filed a motion for a Quo Warranto Hearing relating to his allegation that an ARB member, or ARB staff member, had communicated ex parte with an OSHA Director. The ARB denied the motion, and a related motion to compel DOL and DOE employees to answer questions. The ARB observed that"[q]uo warranto is 'the prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.'" (citation omitted). The ARB denied the motions because agencies can exercise only the powers granted by statute, and the environmental statutes under which Complainant sought relief do not confer quo warranto jurisdiction upon the ARB.

The ARB, nevertheless, considered the allegation the ARB's member's participation in the review would raise an appearance of impropriety, but found Complainant's allegation baseless.

[Nuclear & Environmental Digest VIII C 2 c]
APPELLATE REVIEW; COLLATERAL REVIEW DOCTRINE; TRIBAL IMMUNITY

In The Osage Tribal Council v. USDOL, No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1), the 10th Circuit held that the denial of tribal immunity by an agency adjudicative order is an immediately appealable collateral order.

[Nuclear & Environmental Digest IX M 2]
ATTORNEY MISCONDUCT; SUBMISSION OF DOCUMENTS TO ATTACK ALJ'S REPUTATION RATHER THAN MERITS OF DECISION

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainant's counsel submitted several documents to the ARB during the briefing period and subsequent thereto, seeking to have them considered. One of the documents was an autopsy report on the presiding ALJ, who died several months after issuing the recommended, ostensibly presented to demonstrate that the ALJ was in some way unbalanced, and therefore her rulings were tainted. The ARB excluded the autopsy report and counsel's letter submitting the report. The ARB wrote:

An administrative law judge's decisions stand or fall on their merits. We have reviewed the record in this case, and find nothing improper in any of the rulings of the presiding ALJ. Indeed, it is clear that the ALJ went to extraordinary lengths to be fair and objective to Complainants, notwithstanding the difficult behavior of their counsel.

Attorneys have a professional obligation to demonstrate respect for the courts. See ABA Model Rules of Professional Conduct Rules 3.5 and 8.2 (1999); 29 C.F.R. §18.36. It is clear to us - as it no doubt was clear to counsel - that the autopsy report is completely irrelevant to the merits of Complainants' challenge to the ALJ's rulings. To the extent that the report is offered by counsel in an effort to sully the reputation of the ALJ posthumously, such a personal attack is contemptible.

[Nuclear & Environmental Digest X A 2 b]
MEANING OF "OTHERWISE DISCRIMINATE..."; USE OF TITLE VII DECISIONS FOR GUIDANCE

The ARB observed in Martin v. The Dept. of the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), that because Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., utilizes virtually the same language in describing prohibited discriminatory acts and shares a common statutory origin, the Board and the Secretary have looked to law developed under Title VII for guidance regarding the meaning of the phrase "otherwise discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment."

[Nuclear & Environmental Digest XI]
BURDEN OF PROOF AND STANDARD OF REVIEW

In Martin v. The Dept. of the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the ARB analyzed the general burden of proof and administrative standard of review in whistleblower cases. The Board wrote:

    The regulations governing adjudications by the Department of Labor's Office of Administrative Law Judges provide that, "[u]nless otherwise required by statute or regulations, hearings shall be conducted in conformance with the Administrative Procedure Act, 5 U.S.C. 554." 29 C.F.R. §18.26. As the SDWA and the regulations implementing it are silent concerning the burden of proof to be applied in whistleblower cases, the burden of proof required by the APA governs this case.

    The APA standard of proof "is the traditional preponderance-of-the-evidence standard." Steadman v. SEC, 450 U.S. 91, 102 (1981) (construing the provision at Section 556(d) that "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof"); OFCCP v. Greenwich Collieries, 512 U.S. 267 (1994) (reaffirming Steadman and repudiating assertion in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), that the proponent of the agency order has the burden of production and the respondent has the burden of persuasion). Evidence meets the "preponderance of the evidence" standard when it is more likely than not that a certain proposition is true. Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). This is the standard which is to be applied by the ALJ in his initial hearing.

    In reviewing an ALJ recommended decision under the employee protection provision of the SDWA, this Board is also subject to the APA preponderance of the evidence standard. Ewald v. Commonwealth of Virginia, Case No. 89-SDW-1, Sec. Dec. and Rem. Ord., Apr. 20, 1995, slip op. at 11 (to prevail on complaint under environmental whistleblower provisions, complainant needs to prove proposition by a preponderance of the evidence). The Board is not bound by the ALJ recommended decision, but rather retains complete freedom of decision:

In making its decision, whether following an initial or recommended decision, the agency is in no way bound by the decision of its subordinate officer; it retains complete freedom of decision, as though it had heard the evidence itself. This follows from the fact that a recommended decision is advisory in nature. . . . Similarly, the third sentence of section [557(b) of the APA] provides that "On appeal from or review of the initial decisions of such [hearing] officers, the agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it would have in making the initial decision."

Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII §8, pp. 83-84 (1947); see also Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (same).

To the same effect: Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999).

[Nuclear & Environmental Digest XI]
ELEMENTS OF ERA WHISTLEBLOWER PROTECTION CLAIM

In Paynes v. Gulf States Utilities Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ARB set out a complainant's burden of proof in an ERA whistleblower protection case: Once the case has been fully tried on the merits, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Thus, the adjudicator must determine whether the complainant has proven, by a preponderance of the evidence, that the complainant engaged in protected activity under the ERA, that the respondent took adverse action against the complainant, and that the complainant's ERA-protected activity was a contributing factor in the adverse action that was taken.

The ARB noted that the ALJ erred in placing the burden on the Respondent to prove that the complainant was subjected to adverse action for legitimate, non-discriminatory reasons.

[Nuclear & Environmental Digest XI]
RESPONDENT DOES NOT CARRY BURDEN OF PROOF

Although finding that the ALJ's decision was thorough and well-reasoned, the ARB in Agbe v. Texas Southern University, ARB No. 98- 072, ALJ No. 1997-ERA-13 (ARB July 27, 1999), corrected one isolated misstatement by the ALJ of the burdens of proof (the ALJ had correctly stated the burdens earlier in the decision). Specifically, the ALJ wrote that "Respondent has not met its burden to show that Complainant's internal safety complaints did not motivate Dr. Milton to withdraw the offer of employment to Complainant." The ARB held that "Respondent does not carry the burden of proving a negative proposition, that it was not motivated by Complainant's protected activities when it took the adverse action. Throughout, Complainant has the burden of proving that the employer was motivated, at least in part, by Complainant's protected activities. Zinn v. University of Missouri, Case Nos. 93-ERA-34,36, Sec'y. Dec. Jan. 18, 1996, slip op. at 7."

The ARB held that the ALJ's misstatement did not affect the outcome of the recommended decision, and adopted the ALJ's decision in all other respects.

[Nuclear & Environmental Digest XI A 2 a]
PRIMA FACIE CASE; LACK OF EVIDENCE OF CAUSATION

In Agosto v. Consolidated Edison Co. of New York, Inc., ARB Nos. 98-007 and 98-152, ALJ Nos. 1996-ERA-2 and 1997-ERA-54 (ARB July 27, 1999), the ARB adopted the ALJ's conclusion that Complainant failed to present a prima facie case that he was retaliated against when he was not selected for work during an outage where Respondent presented proof that the non-hire was based on earlier poor performance evaluations, and the ALJ had properly found in an earlier proceeding that those poor performance evaluations were not retaliatory. Complainant had walked out of the courtroom, apparently in frustration over the ALJ's refusal to permit him to re-litigate the issue of whether the performance evaluations were not retaliatory.

[Nuclear & Environmental Digest XI A 2 b iii]
PRIMA FACIE CASE; INFERENCE OF CASUAL RELATIONSHIP; LACK OF RELEVANCY OF EVIDENCE OF COMPLAINANT'S ALTERNATIVE THEORIES FOR REASON FOR ADVERSE ACTION

In Paynes v. Gulf States Utilities Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ALJ had concluded that Complainant had failed to establish the fourth element of a prima facie case sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action where Complainant had first asserted a theory of race discrimination with the EEOC, and later pursued a contract claim in a union arbitration proceeding. The ALJ concluded that the Complainant was merely covering all his bases when he added the ERA employee protection complaint.

The ARB found that the filing of the EEOC complaint and the union arbitration based on the same set of facts giving rise the ERA complaint was "simply not relevant" to this element of the prima facie case.

The ARB observed that, since the case had been fully tried on the merits, the ALJ's analysis of whether a prima facie case had been presented lacked utility. Nevertheless, the ARB stated that it was compelled to respond and clarify the ALJ's error as a matter of law.

[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINT AS PROTECTED ACTIVITY IN FIFTH CIRCUIT; PRE-1992 AMENDMENT ACTIVITY, BUT POST-AMENDMENT FILING OF COMPLAINT

In Paynes v. Gulf States Utilities Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the Respondent argued that Complainant did not engage in protected activity because the filing of internal complaints was not deemed protected under the ERA in the Fifth Circuit where this matter arose. See Brown and Root v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984). The ARB rejected this argument because the ERA was amended to specifically include the filing of internal complaints by the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). Complainant's internal complaint was made prior to the enactment of the 1992 amendments, but he did not file his ERA complaint until after the effective date of the amendment of the ERA.

[Nuclear & Environmental Digest XII D 4]
PROTECTED ACTIVITY; COMPLAINTS ABOUT ADMINISTRATION OF PERSONNEL SECURITY CLEARANCE UNDER THE CAA, SDWA, SWDA, AND CERCLA

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants alleged that "they were retaliated against because they expressed concerns to the DOE Inspector General and to congressional and FBI investigators about [Respondent's] administration of its personnel security clearance operation. Complainants had expressed concerns that, under the auspices of [the Chief for Personnel Security], various questionable individuals had their national security clearances granted or renewed in contravention of DOE personnel security regulations. Complainants asserted that these individuals included convicted felons, drug dealers and abusers, and persons with psychological problems. Complainants also asserted that they raised concerns regarding organized criminal activity, including gambling, drugs and prostitution, and government contract fraud." Slip op. at 3 (citations to administrative record omitted).

Since Complainants' ERA and TSCA complaints were dismissed based on sovereign immunity, the ARB Complainants characterized Complainants' case as an argument that "the federal security clearance requirements and procedures for DOE employees and applicants set forth at 10 C.F.R. Part 710 (1998) were improperly implemented and enforced, and that such improper enforcement could result in environmental damage in violation of the CAA, SDWA, SWDA, or CERCLA" Slip op. at 11. The ARB observed that Title 10, Part 710 of the CFR, concerns eligibility for access to classified matter or special nuclear material, and is issued pursuant to the Atomic Energy Act of 1954. The ARB found that employee safety concerns under the Atomic Energy Act are specifically covered by the ERA, while nothing in the CAA, SDWA, SWDA, or CERCLA relates to security clearance operations at places of employment. The ARB thus concluded that, "[s]ince Complainants' security concerns are unrelated to potential violations of the CAA, SDWA, SWDA, or CERCLA, their expressed concerns cannot be grounded in reasonably perceived violations of those statutes." Slip op. at 11.

The ARB was not convinced by Complainants' theory "that people who have something questionable in their personal background are, for that reason, likely to engage in behavior at work which will endanger the environment" finding that theory "rank speculation." Slip op. at 11.

[Nuclear & Environmental Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; FOURTH CIRCUIT LAW; FAILURE OF COMPLAINANT TO ESTABLISH, OBJECTIVELY, THAT CONDITIONS WERE SO INTOLERABLE AS TO COMPEL RESIGNATION

Looking to Title VII caselaw for guidance, the ARB in Martin v. The Dept. of the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), observed that the Fourth Circuit the circuit in which this case arose applies a minority "subjective" standard, that a constructive discharge occurs when an employer intentionally renders an employee's working conditions intolerable, whereas the majority of circuits use an "objective" standard, which asks only whether, in response to the employer's actions, a reasonable person in the employee's position would have felt compelled to resign. The ARB concluded that, as applied by the courts, the distinction between the two standards is minimal, and is in fact irrelevant, where, as in the instant case, the complainant fails to prove that working conditions were rendered so intolerable that the employee was compelled to resign. The ARB, in finding that the complainant failed in this proof, reversed the ALJ's recommended decision.

The ALJ had found four developments had combined to make the Complainant's working conditions so intolerable that he was constructively discharged. The ARB disagreed. First, Complainant was given a "highly successful" rather than his typical "exceptional" performance appraisal rating in retaliation for protected activity; the ARB, however, noted that Complainant suffered no adverse consequences from the lower appraisal and that it returned to the previous "exceptional" level in the following year. Second, Complainant, a plumber, had been reassigned to regular plumbing duties from his backflow prevention, testing and repair work; although this reassignment meant that less initiative and responsibility was required of Complainant, the ARB noted that Complainant suffered no loss in pay or reputation. Third, Complainant was required to answer directly to three supervisors for a period of time; the ARB found that Complainant's testimony indicated that he was not particularly perturbed by this situation.

Finally, the ALJ found that Complainant was ostracized by his co-workers; the ARB found that "[t]he few comments allegedly made by co-workers in connection with [Complainant's] whistleblowing activities appear to have been sporadic and short-lived in duration, and do not come close to reaching the level of intensity needed to demonstrate that conditions were so intolerable that [Complainant] was forced to quit." 1993-SDW-1 (ARB July 30, 1999) @ 10. The ARB noted that because it found that any co-worker ostracism did not rise to the level necessary to support a constructive discharge finding, it would not address the issue whether and under what circumstances co-worker ostracism can be found to constitute retaliation by an employer.

The ARB also considered whether Complainant's supervisor had treated Complainant in such an abusive manner as to constitute a constructive discharge, and found that the weight of the evidence did not support such a conclusion. Finally, the ARB found, as had the ALJ, that Complainant failed to prove that he was subjected to harassing telephone calls or that his truck had been sabotaged.

[Nuclear & Environmental Digest XVI D 2 b]
COMPENSATORY DAMAGES FOR NON-PECUNIARY LOSS; PERFECTION OF PROOF ON DAMAGES DURING REMAND HEARING

In Martin v. The Dept. of the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the case originally was reviewed by the Secretary, who reversed the ALJ's recommendation of no liability -- finding that Respondent had retaliated against Complainant -- and remanded for a hearing on whether Complainant had been constructively discharged. In the order, the Secretary declined to award compensatory damages for stress because of lack of proof. Following the remand, the ARB now had jurisdiction over the matter; it found that the record failed to establish a case of constructive discharge. The ARB, however, found that it could now award the compensatory damages for stress denied by the Secretary because the hearing on remand had remedied the lack of proof. The ARB, however, declined to award compensatory damages for direct pecuniary loss in the form of medical expenses, finding that there was insufficient evidence on which to base a determination as to the amount of those expense related to the retaliation found by the Secretary in the original order.

[Nuclear & Environmental Digest XVI D 3 b]
COMPENSATORY DAMAGES; INJURY TO PROFESSIONAL REPUTATION

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the ARB found that a compensatory damage award of $25,000 for damage to professional reputation was appropriate where Office of Personnel Management still had adverse information on file, and this information would be available to any other federal agency.

[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS OR MENTAL ANGUISH; COMPARATIVE AWARDS; REFERENCE TO OTHER DISCRIMINATION-RELATED CASES MAY BE INSTRUCTIVE BUT NOT CONTROLLING

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the ARB reaffirmed the longstanding principal that "compensatory damage awards for emotional distress or mental anguish should be similar to awards made in other cases involving comparable degrees of injury." The ARB noted that in Smith v. Esicorp, ARB No. 97-065, ALJ No. 1993-ERA-16 (ARB Aug. 27, 1998), it had "reviewed a series of earlier cases decided by the Secretary and the Board involving compensatory damages awards for mental pain and suffering ranging from $5,000 in a case where the complainant showed only that he became moody and depressed and short tempered with his wife and children, to $75,000 in a discriminatory discharge case where there was evidence of major depression supported by reports by a psychiatrist and a licensed clinical social worker." Slip op. at 4.

In the instant case, Complainant testified to a variety of medical and personal problems after learning of blacklisting by Respondent, including severe anxiety attacks, inability to concentrate, inability to enjoy life, and marital conflict. Her description of mental anguish was supported by a psychologist. The ALJ, considering the level of harm suffered and comparing that harm with comparable cases, recommended an award of $45,000 for emotional distress. On appeal to the ARB, Complainant argued that this award was insufficient, that such awards under the environmental whistleblower statutes should be set at a level comparable to damage awards by courts or juries for violations of state or federal anti-discrimination rights statutes or in analogous tort actions, and noted that the compensatory damage awards in these other types of cases often are substantially higher than the amounts recommended by the ALJ.

The ARB acknowledged that "damage awards under other discrimination or discrimination-related statutes can be instructive in setting damage awards in environmental whistleblower statutes before the Department of Labor, even though the levels of compensatory damages awarded under these other statutes are not controlling." Slip op. at 5. The Board continued "We emphasize that there is no arbitrary upper limit on the amount of compensatory damages that may be awarded under the whistleblower protection provisions enforced by the Department; indeed, as a practical matter, exclusive reliance on damage awards in prior whistleblower cases easily could result in the level of compensatory damages becoming frozen in time, ignoring even such basic factors as inflation -- a result that would be inconsistent with the statutory mandate that the victims of unlawful discrimination be compensated for the fair value of their loss." Id. The Board, however, observed that setting a monetary value on intangible damages involves subjective judgment, and agreed with the ALJ that based on the present record, $45,000 for emotional distress was reasonable. The ARB also adopted the ALJ's recommended award of $529.28 for past medical expenses and $10,000 for future medical expenses. Finally, the ARB adopted as a reasonable procedure the ALJ's order that Complainant submit her bills for medical treatment to Respondent for payment.

[Nuclear & Environmental Digest XVI D 4 a]
COMPENSATORY DAMAGES FOR NON-PECUNIARY LOSS; COMPARATIVE AWARDS; PERFECTION OF PROOF ON DAMAGES DURING REMAND HEARING

In Martin v. The Dept. of the Army, ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the ARB described the quantum of proof necessary to establish entitlement to compensatory damages for non- pecuniary losses:

    By permitting the recovery of compensatory damages for violation of its employee protection provision, the SDWA has created "a species of tort liability" in favor of discriminatees: Damages are designed to compensate for injury caused by a respondent's breach of duty and "may include not only out-of-pocket loss and other monetary harms, but also such injuries as 'impairment of reputation . . ., personal humiliation, and mental anguish and suffering.'" Accordingly, compensatory damages contemplate restitution for non-pecuniary loss.

    Awards generally require that a plaintiff demonstrate both (1) objective manifestation of distress, e.g., sleeplessness, anxiety, embarrassment, depression, harassment over a protracted period, feelings of isolation, and (2) a causal connection between the violation and the distress. Considerations include whether, as a consequence of the distress, the plaintiff lost the esteem of peers, suffered physical injury, received psychological counseling, required medication or suffered loss of income.

Id. @ 16-17 (citations omitted); see also Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999) (citing Martin). In the instant case, Complainant presented evidence that he had suffered severe emotional distress manifested by psychological counseling of increasing intensity, several hospitalizations, withdrawal, lack of concentration, and other symptoms. The ARB found that Complainant proved that the severe emotional distress resulted at least in part from Respondent's retaliation. The ARB awarded $75,000 for these circumstances. The ARB considered federal court decisions involving similar circumstances, in addition to prior Board decisions, in setting the $75,000 award.

[Nuclear & Environmental Digest XVI F]
EXEMPLARY DAMAGES

In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the ALJ recommended that punitive damages be denied, finding that when Respondent made two negative references about Complainant in response to reference checks, it did not act with reckless or callous disregard of Complainant's rights. The ARB agreed and adopted the ALJ's recommendation, finding that the record did not show that the persons who had given the negative references did so with the purpose or intent to harm Complainant or with reckless disregard for her rights.

[Nuclear & Environmental Digest XVII A]
SETTLEMENTS; CERCLA, FWPCA AND SWDA DO NOT REQUIRE SECRETARIAL APPROVAL OF SETTLEMENT

Neither the Water Pollution Control Act nor the Solid Waste Disposal Act require that the Secretary of Labor enter into or otherwise approve a settlement. Sayre v. Alyeska Pipeline Service Co., ARB Nos. 99-091 and 99-092, ALJ No. 1997-TSC-6, slip op. at 2 n.1 (ARB Sept. 30, 1999) (In Sayre, however, the complaint also included TSCA and CAA complaints, which do require Secretarial approval; thus, the ARB reviewed the settlement agreement).

See also Marcus v. U.S. Environmental Protection Agency, ARB No. 99-027, ALJ Nos. 1996-CAA-3 and 7 (Oct. 29, 1999) (FWPCA, CERCLA and SWDA settlements do not require Secretarial approval).

[Nuclear & Environmental Digest XVII F]
SETTLEMENT; RENUNCIATION

In a recommended decision on remand, the ALJ in Espinosa v. Alliedsignal, Inc., 1996-WPC-2 (ALJ Oct. 14, 1999), applied a three part test from Ruud v. Westinghouse Hanford Co., 1988-ERA-33, slip op. at 75-6 (ALJ Mar. 15, 1996), in considering whether a fraud was committed upon either the OALJ or the ARB in the presentation of a settlement agreement: clear and convincing evidence of (1) knowingly false material representations; (2) an intent to deceive; and (3) the alleging party's reliance thereon. The facts in Espinosa were complex, and to fully understand the circumstances and rulings, the full decision should be consulted. Briefly, Complainant and her former counsel each made allegations that led the ARB, while reviewing the ALJ's original recommendation of approval of a settlement agreement, to conclude that "at least one of the litigants in this case (or their counsel) have made material misrepresentations to the Department with regard to [Complainant's] whistleblower claims under the environmental statutes." Espinosa v. Allied Signal, Inc., 1996-WPC-2 (ARB Aug. 18, 1998). The ARB felt that it could not approve the settlement under such a cloud, and remanded the case to the ALJ to reconsider, and take additional evidence if necessary. Id.

On remand, the ALJ found that the third element of the Ruud test was not met because there was no evidence of detrimental reliance by the OALJ or the ARB on the document that contained the allegedly material misrepresentation the misleading nature of the exhibit having already been disclosed by Complainant's new counsel to the settlement judge who assisted the parties in negotiating the settlement that was ultimately presented to the presiding ALJ (there had been an earlier settlement negotiated by Complainant's former counsel that was repudiated by Complainant) and Respondent's counsel. Thus, finding that the settlement was fair, adequate and reasonable, the ALJ reinstated his earlier recommendation that the settlement be approved.

[Nuclear & Environmental Digest XVII G 9]
SETTLEMENT; ONCE CASE REFERRED TO ARB, ALJ HAS NO AUTHORITY TO APPROVE SETTLEMENT

In Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), the ALJ found that Respondent had violated the employee protection provision of various environmental statutes, ordered the payment of compensatory damages, ordered the submission of an attorney's fees petition, and ordered the parties to attempt to reach a consent agreement providing for affirmative relief. The ALJ ordered the parties to attempt to reach a consent agreement on affirmative relief because the parties had not been able to successfully integrate Complainant back into the Respondent agency based on prior whistleblower complaints, and the ALJ agreed with the Complainant that a detailed orders specifically stating the steps that would be taken to remedy the situation would be necessary.

Respondent petitioned the ARB for review of the ALJ's recommended decision. Subsequently, the parties requested the appointment of a settlement judge pursuant to 29 C.F.R. § 18.9(e). Upon mediation, the parties reached a settlement on the entire case, rather than just the affirmative relief issue. The parties submitted the settlement agreement to the ALJ for approval, but only filed "informational copies" of the agreements with the ARB. The ALJ expressed doubt about her authority to approve the settlement, as she only intended to retain jurisdiction over the attorney's fees and affirmative relief issues, but reviewed and approved the settlement to the extent of her authority to do so. The ALJ's recommended order included a standard notice of review informing the parties that the decision would become final unless a petition for review is timely filed with the ARB. Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 and 7 (ALJ Aug. 24, 1999). The ARB obtained complete copies of the settlement from the parties only following repeated requests.

The ARB held that once Respondent filed a timely petition for review with the ARB pursuant to 29 C.F.R. § 24.8(a), the ALJ no longer had authority to consider the proposed settlement of the case. Marcus v. U.S. Environmental Protection Agency, ARB No. 99-027, ALJ Nos. 1996-CAA-3 and 7 (Oct. 29, 1999). The ARB also held that "the ALJ's referral of the case to a settlement judge while the case was on appeal to the ARB was improper. After an ALJ's recommended decision is appealed, it is the ARB not the ALJ that has the authority to review or disapprove any settlement agreements subsequently reached by the parties." Slip op. at 2 (footnote omitted).

[Nuclear & Environmental Digest XVIII A 3]
VOLUNTARY DISMISSAL; DISMISSAL WILL BE WITH PREJUDICE ONLY IF RESPONDENT DEMONSTRATES THAT IT WILL SUFFER PLAIN, LEGAL PREJUDICE

In Anderson v. DeKalb Plating Co. Inc., ARB No. 98-158, ALJ No. 1997-CER-1 (ARB July 27, 1999), the ALJ had issued an order recommending that Complainant's petition to withdraw her request for hearing be granted, and that the complaint be dismissed with prejudice. On review, the ARB had modified the order to be without prejudice, and Respondent subsequently filed a request that the order be changed back to dismissal with prejudice.

The ARB noted that FRCP 41 governs voluntary dismissals of environmental whistleblower cases. The ARB wrote that "[b]ecause a dismissal with prejudice prevents a complainant from reinstituting a case, Ball v. City of Chicago, 2 F.3d 753 (7th Cir. 1993), it is not a sanction to be imposed lightly. Indeed, Fed. R. Civ. Pro. Rule 41(a) (2), providing for voluntary dismissal by court order, assumes that a voluntary dismissal is without prejudice unless the order states otherwise." The ARB, in rejecting Respondent's request, held that

to prevail in its request that the case be dismissed with prejudice, [Respondent] must establish that it will suffer plain, legal prejudice if the case is dismissed without prejudice. Factors to be considered in determining whether a respondent will suffer legal prejudice include the respondent's effort expended in and the expense of trial preparation, the complainant's excessive delay and lack of diligence in prosecuting the action, insufficient explanation for the need to take a dismissal and the fact that respondent has filed a motion for summary judgment.

Anderson, 1997-CER-1 @ 2 (citations omitted).

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT AS BAR TO ACTIONS AGAINST STATE AGENCIES

In his recommended decision in Migliore v. Rhode Island Dept. of Environmental Management, 1998-SWD-3, 1999-SWD-1 and 2 (ALJ Aug. 13, 1999), the ALJ addressed Respondent's argument that Complainant's SWDA whistleblower complaint should be dismissed because the Eleventh Amendment bars an ALJ from entering an award against Respondent, a state agency. The ALJ reviewed the statutory language and caselaw, and quoting the 8th Circuit, concluded that "'Courts have found no Eleventh Amendment bar to actions brought by federal administrative agencies pursuant to complaints of private individuals.' [Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 567 (8th Cir. 1980)]; see also Tennessee Dep't of Human Serv. v. United States Dept. of Education, 979 F.2d 1162 (6th Cir. 1992)." The ALJ, in a footnote, however, observed that "while the Eleventh Amendment does not bar this administrative proceeding, it could apply in the event that a private party petitions a judicial court for enforcement of an administrative award. See Georgia Dept. of Human Resources v. Nash, 915 F.2d 1482, 1486 n.14 (11th Cir. 1990)."

Compare Thakur v. State of New Mexico Environmental Dept. Construction Programs Bureau, 1998-WPC-5, slip op. at n.3 (ALJ Oct. 21, 1999) (ALJ declined to address issue of state agency's immunity from suit, finding that the proceeding before the ALJ was not the proper forum to raise such a Constitutional issue).

See also The Osage Tribal Council v. USDOL, No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1) (court considered issue of whether tribal immunity can be abrogated through a definitional section, and analogized to Eleventh Amendment state sovereign immunity cases holding that definitional inclusions are sufficiently explicit waivers of immunity; Nowak v. Environmental Dept. of the State of New Mexico, 1996-CAA-9 (ALJ Mar. 4, 1997) (ALJ recommended approval of a settlement agreement that included provision that agreement could be enforced through binding arbitration; ALJ wrote that "[s]uch a provision is appropriate in this case because the Eleventh Amendment may preclude the Complainant from seeking to enforce the agreement in a Federal District Court under the provisions of 42 U.S.C. §§ 7622(e)." (citations omitted)).

[Nuclear & Environmental Digest XX E]
TRIBAL IMMUNITY

In The Osage Tribal Council v. USDOL, No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1), the 10th Circuit affirmed the ARB's determination that the SDWA abrogates tribal immunity, rejecting the Petitioner's argument that, because the basis for finding waiver was grounded in a definition, it could not constitute the kind of explicit waiver of immunity required.

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA OR TSCA

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), the ARB reaffirmed its holdings in Teles v. DOE, 1994-ERA-22 (Sec'y Aug. 7, 1995), and Stephenson v. NASA, 1994-TSC-5 (Sec'y July 3, 1995), that sovereign immunity had not been waived under the whistleblower provisions of the ERA and the TSCA..

[Nuclear & Environmental Digest XXI A]
ISSUE PRECLUSION; CANNOT BE APPLIED WHERE ALJ'S FIRST RECOMMENDED DECISION IS STILL UNDER REVIEW BY THE ARB

In Agosto v. Consolidated Edison Co. of New York, Inc., ARB Nos. 98-007 and 98-152, ALJ Nos. 1996-ERA-2 and 1997-ERA-54 (ARB July 27, 1999), Complainant's first complaint alleged, inter alia, that he was retaliated against by the entry into his file of poor performance evaluations after his layoff from an outage. The ALJ, after 13 days of hearings, concluded in his recommended decision that the poor performance evaluations were reasonable evaluations of Complainant's performance and were not retaliatory. Subsequently, Complainant filed a second complaint alleging that he was retaliated against when he was not selected for work for an outage. Upon docketing with OALJ, the case was assigned to the same ALJ; the first case was still pending review by the ARB during the ALJ's handling of the second case. Respondent alleged that the poor performance evaluations were the reason for the Complainant not being rehired.

The ALJ reasoned that collateral estoppel (or issue preclusion) applied to question of whether the performance evaluations were retaliatory, and therefore did not permit Complainant to relitigate this issue. He did permit, however, Complainant to attempt to prove that the performance evaluations were not the basis for the decision not to rehire.

The ARB consolidated the two cases for decision. In reviewing the ALJ's decision on the first case, the ARB found that the ALJ had correctly concluded that the performance evaluations were not retaliatory. In regard to the second case, however, the ARB held that the ALJ erred in characterizing the limitation on the Complainant's presentation of evidence and cross-examination on the performance evaluation issue as being grounded in collateral estoppel. Use of issue preclusion was in error because the ALJ's first decision was a recommended decision, subject to de novo review by the ARB, and therefore, "relevant issues" had not been "decided in the prior proceeding." The ARB observed in a footnote, however, that

The ALJ might have invoked Section 18.403 of the Rules of Practice and Procedure of the Department of Labor's Administrative Law Judges to exclude evidence in Agosto II regarding the facts underlying the performance evaluations. That section provides in pertinent part that "evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues, or misleading the judge as trier of fact, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 29 C.F.R. §18.403.

The ARB concluded that the ALJ's error was harmless given that it had, in the first part of the decision, affirmed the ALJ's finding that the evaluations were not retaliatory.

[Nuclear & Environmental Digest XXI B]
RES JUDICATA/COLLATERAL ESTOPPEL; ARBITRATION PROCEEDING

In Paynes v. Gulf States Utilities Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ARB noted that the law of res judicata is applicable to administrative proceedings when an agency is acting in a judicial capacity. The Board, however, agreed with the ALJ that claim preclusion was not applicable where a prior arbitration proceeding concerning Complainant's transfer to a lower paying job was grounded in contract law and did not involve the ERA Section 211 complaint before the DOL -- and that issue preclusion was not applicable where the issue of Complainant's job performance was not fully and vigorously litigated in the arbitration proceeding, and the main issue in that proceeding was decided as a matter of contract law.

[STAA Digest II H 4]
STANDARD OF REVIEW

The following is an excerpt from Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 @ 8 (ARB July 28, 1999) (case citations omitted):

    "Pursuant to the regulation implementing the STAA at 29 C.F.R. §1978.109(c)(3) (1998), if the factual findings rendered by the ALJ are supported by substantial evidence on the record considered as a whole, the Administrative Review Board is bound by those findings.

    Pursuant to the Administrative Procedure Act, in reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision. . . ." 5 U.S.C. §557(b), . . .; see 29 C.F.R. §1978.109(b) (1998). Accordingly, the Board reviews the ALJ's conclusions of law de novo."

To the same effect: Schulman v. Clean Harbors Environmental Services, Inc., ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999)

[STAA Digest II P]
SUMMARY DECISION; ERROR TO EVALUATE THE MERITS OF THE CASE

In Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999), the ALJ was found to have erred in granting summary decision where he evaluated the merits of the case in his recommended decision and order. On a motion for summary judgment, "the judge does not weigh the evidence or determine the truth of the matters asserted, but only determines whether there is a genuine issue for trial. * * * If the slightest doubt remains as to the facts, the ALJ must deny the motion for summary decision." Slip op. at 7 (citations omitted). The ARB concluded that the ALJ had apparently discounted Complainant's claim that he was tired and credited the reasonableness of Respondent's policies, and stated that "[t]o do so necessarily requires a weighing of evidence that is inconsistent with a summary decision proceedings...." Slip op. at 9 (citation omitted).

[STAA Digest II P]
SUMMARY DECISION; STANDARD OF REVIEW BY ARB IS DE NOVO

In an STAA whistleblower case, a grant of summary decision by an ALJ pursuant to 29 C.F.R. § 18.40(d), is reviewed by the ARB de novo, that is, the same standard used by the ALJ. Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999).

[STAA Digest III B]
APPLICABILITY OF STATE MOTOR VEHICLE LAWS

Where a complaint would be driving a commercial vehicle on state roads, the state's motor vehicle laws are subsumed and incorporated into STAA as a "regulation" of the United States by reason of the FHA regulation at 49 C.F.R. §392.2 (1998). Thus, in Ass'y Sec'y & Cotes v. Double R Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), Complainant's refusal to drive a truck that would be illegally overweight under state law was protected activity and the Company's termination of him for that protected activity constituted a violation of STAA.

[STAA Digest III J]
EVIDENCE; QUALIFICATION OF WITNESS

In Korolev v. Rocor International, 1998-STA-27 (ALJ Oct. 29, 1999), Respondent moved to strike testimony and evidence presented by a witness identified as a sleep technician, objecting that the testimony was not relevant. Respondent also objected to the witness's qualifications based on lack of personal knowledge or testing of the Complainant (relying on 29 C.F.R. § 18.701). In response, Complainant argued that one factor of his case was whether or not ability and alertness were impaired due to fatigue, and that the witness was uniquely qualified to testify, due to his experience at sleep labs to testify about the effects of fatigue and sleep deprivation. The ALJ questioned the probative value of the testimony, but found it to be admissible because the witness had more than eight years of experience as a "polysomnographer," and in his position, was personally involved in hundreds of sleep studies, a few specifically involving long-haul truck drivers. The ALJ also considered that the witness testified that he reviewed the Complainant's driving logs prior to the hearing.

[STAA Digest III J]
EVIDENCE; ADMISSIBILITY OF SLEEP STUDY ARTICLE

In Korolev v. Rocor International, 1998-STA-27 (ALJ Oct. 29, 1999), Respondent objected to the admission of, and testimony referring to, an article titled "The Sleep of Long Haul Truck Drivers" on hearsay, qualifications, and relevancy grounds. Respondent also argued that under Fed.R.Evid. 803, even if admitted, the statements may be read into evidence but not received as exhibits. The ALJ, however, was not convinced by Respondent's objections, finding that the proceeding was not bound by the federal rules of evidence. The ALJ noted, however, that the article had little probative value in assessing the particular circumstances of Complainant's claim.

[STAA Digest IV A 1]
BURDENS OF PROOF; GENERAL STATEMENT OF

See Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), for a general overview of the standards and burdens for claims arising under Section 405 of the STAA.

[STAA Digest IV A 1]
PRIMA FACIE CASE ANALYSIS NOT RELEVANT ONCE CASE FULLY TRIED ON THE MERITS

In Pike v. Public Storage Companies, Inc., ARB No. 99-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999), the ARB adopted the ALJ's recommended decision, but noted in regard to the ALJ's analysis of a prima facie case: "In a case fully tried on the merits, ... It is not particularly useful to analyze whether the complainant established a prima facie case. ... Rather, the relevant inquiry is whether [the complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." (citation omitted).

[STAA Digest IV A 2 c]
CAUSATION; INFERENCE DUE TO TEMPORAL PROXIMITY OVERCOME BY PREPONDERANCE OF EVIDENCE

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), Complainant had registered internal complaints to Respondent protesting its sick leave policy, once six months before his discharge, and once eight days before his discharge. The ARB concluded that although the proximity between the second complaint and discharge entitled Complainant to an inference of causation, the preponderance of the evidence established that Respondent had ample reason to discharge Complainant for his poor work record, and therefore Complainant failed to establish that Respondent fired him for making protected safety complaints.

See also Schulman v. Clean Harbors Environmental Services, Inc., ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999) (temporal proximity insufficient to satisfy Complainant's burden of proof by preponderance of the evidence, particularly in light of Respondent's presentation of evidence that the reason for termination from employment was insubordination).

[STAA Digest IV D 1]
DUAL MOTIVE; DOES NOT APPLY WHERE RECORD DOES NOT SUPPORT A FINDING OF ANY UNLAWFUL MOTIVE

Where the evidence of record clearly does not support a finding of any unlawful motive on the part of a respondent, the "dual motive" analysis is inappropriate. Schulman v. Clean Harbors Environmental Services, Inc., ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999).

[STAA Digest V A 3 c]
"ANTICIPATORY FATIGUE"

"Neither Somerson [v. Yellow Freight System, Inc., ARB Nos. 99-005, 036; ALJ Nos. 98-STA-9, 11 (ARB Feb. 18, 1998)] nor prior Secretary and ARB decisions should be read to exclude coverage of claims under [STAA Section 405(a)(1)(B)(i)] that are predicated on anticipatory fatigue. Instead, these cases stand for the proposition that a complainant must provide some proof that his or her ability will likely become impaired due to fatigue." Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21, slip op. at 11 (ARB Nov. 30, 1999) (footnotes omitted).

[STAA Digest V A 4 a]
REASONABLE APPREHENSION INCLUDES ANTICIPATORY FATIGUE; REASONABLENESS OF RESPONDENT'S POLICY NOT AT ISSUE, BUT RATHER REASONABLENESS OF COMPLAINANT'S APPREHENSION

The broad scope of STAA section 405(a)(1)(B)(ii) encompasses situations where a driver's physical condition, including present or anticipated fatigue, causes an employee to have "a reasonable apprehension of serious injury to the employee or the public." Somerson [v. Yellow Freight System, Inc., ARB Nos. 99-005, 036; ALJ Nos. 98-STA-9, 11, slip op. at 14 n.13 (ARB Feb. 18, 1998). In Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999), the ALJ was found to have misapplied this standard when he found that Complainant failed to present evidence to establish that Respondent's policy of awakening drivers to change trailers was unreasonable and thus a violation of section 405(a)(1)(B). The ARB held that "[i]t is not the reasonableness of [Respondent's] policy that is at issue, but the reasonableness of [Complainant's] apprehension that he would be too fatigued to operate his vehicle safely under the circumstances that he anticipated. ... It is entirely possible that [Respondent] could have a policy which appears reasonable on its face, but which may still violate the STAA based on the specific circumstances under which it is applied." Slip op. at 12-13 (citations omitted).

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE CLAUSE; ILLNESS

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB agreed with the ALJ's analysis under the "refusal to drive" clause of the STAA whistleblower provision, 49 U.S.C. § 31105(a)(1)(B), to the effect that the "'STAA does not preclude an employer from establishing reasonable methods or mechanisms for assuring that a claimed illness is legitimate and serious enough to warrant a protected refusal to drive.'" Id. @ 13, quoting Scott v. Roadway Express, Inc., 1998-STA-8 @ 26 n.23, slip op. at 29 n.23 (ALJ Nov. 6, 1998) . The ARB also agreed, however, with the ALJ's conclusion that Complainant's refusals to drive likely would have been found valid under such a review mechanism, because Complainant produced physician statements excusing him from work due to pain and illness.

The ARB disagreed with the ALJ's conclusion that Respondent violated only the "actual violation" category of the refusal to drive clause, because "'[a] refusal to drive that is based on an employee's concern that his or her ability or alertness is materially impaired, conditions that are addressed by the 'fatigue rule,' may qualify for protection under either the 'reasonable apprehension' or the 'actual violation' provision of the STAA.'" Id. @ 13, quoting Ass't Sec'y & Freeze v. Consolidated Freightways, ARB No. 99-030, ALJ No. 1998-STA-26, slip op. at 7 (ARB Apr. 22, 1999), and cases there cited. The ARB nonetheless concluded that it need not determine whether there also was a violation of the "reasonable apprehension" category because it would not alter the remedies to which Complainant was entitled.

[STAA Digest VI B 4]
FACIALLY NEUTRAL POLICY; ABSENTEEISM POLICY

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB agreed with the ALJ's analysis under the "complaint" clause of the STAA whistleblower provision, 49 U.S.C. § 31105(a)(1)(A), concerning the issuance of warning letters by Respondent to Complainant for placing himself on the sick board when he had no sick days remaining. The ARB quoted the ALJ:

Application of Roadway's absenteeism policy to Scott under the circumstances of this case presented Scott with an untenable choice. He could drive in violation of federal regulations prohibiting the operation of a commercial motor vehicle "while the driver's ability or alertness is so impaired . . . through . . . illness . . . as to make it unsafe for him/her to drive." 49 C.F.R. §392.3 (1997). Alternatively, he could refuse to drive and be given a letter of warning. This is precisely the kind of situation that STAA's anti-retaliation provision is designed to protect against. 128 Cong. Rec. 29192 (1988).

To permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits.

Id. @ 11, quoting Scott v. Roadway Express, Inc., 1998-STA-8 @ 26, slip op. at 27-28 (ALJ Nov. 6, 1998) (additional citations omitted).

[STAA Digest IX A 6]
REINSTATEMENT; WAIVER

In Ass'y Sec'y & Cotes v. Double R Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), the ALJ had ruled that reinstatement was a moot issue because Complainant had become a full-time student. On review, the Assistant Secretary argued that this was error because the STAA mandates reinstatement. The ARB affirmed the ALJ not on the basis of mootness but because there was a clear waiver of reinstatement by OSHA in its prehearing brief before the ALJ, and no discussion of the issue in OSHA's post-hearing brief.

[STAA Digest IX B 2 b viii]
BACK PAY; INTEREST

Payment of interest on a back pay amount is mandatory in a discrimination case in order to make the complainant whole. In STAA cases, the rate used is the one used for computing interest for underpayment of Federal taxes, 26 U.S.C. § 6621(a)(2). Ass'y Sec'y & Cotes v. Double R Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999).

[STAA Digest IX B 2 b xi]
BACK PAY; END PERIOD UPON COMPLAINANT VOLUNTARILY BECOMING FULL-TIME STUDENT

A back pay award is terminated on the date that the complainant voluntarily becomes a full-time student, and thus no longer available for work. Ass'y Sec'y & Cotes v. Double R Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999).

[STAA Digest IX C]
ATTORNEY'S FEES; MUST RELATE TO BRINGING OF COMPLAINT

Where the Office of the Solicitor, USDOL, not Complainant's counsel, litigated the case before the court of appeals, the ARB denied fees and costs for advisory services for Complainant's counsel not closely related to the bringing of the complaint. Thus, the ARB allowed fees for counsel's review and response to DOL's draft brief -- the ARB presuming that this function was consultation with the Solicitor's office -- but disallowed costs incurred by counsel for advisory services in exploring the question of whether a motion for change of venue would be successful where this function did not further litigation of the case. Pittman v. Goggin Truck Line, Inc., ARB No. 99-062, ALJ No. 1996-STA-25 (ARB July 30, 1999).

[STAA Digest IX C]
ATTORNEY'S FEES; PARTIAL SUCCESS

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the presiding ALJ had applied the rationale in Hilton v. Glas-Tec Corp., 1884-STA-6 (Sec'y July 15, 1986), to conclude that the claim on which Complaint won and the claim on which he lost were so "intertwined" that there should not be any reduction for attorneys fees for the time spent on the claim on which Complainant did not prevail. On review, Respondent argued that the ALJ's decision was contrary to Supreme Court and Sixth Circuit decisions, and the ARB upon examining that authority concluded that Respondent's argument had merit. The ARB applied Supreme Court authority from Hensley v. Eckerhart, 461 U.S. 424 (1983), to the effect that limited success should result in a fee award that is reasonable to the results obtained. In the instant case, the ARB recognized that Complainant's claims (one meritorious claim for disciplinary letters and one non-meritorious claim for discharge) were interrelated, but observed that interrelationship does not necessarily mean that it was reasonable to expend all the hours involved in pursuing the unmeritorious claim. Finding that there was only a small overlap in the evidence, the ARB held that a reduction was warranted.

Since the fee petition was not sufficiently detailed to permit a simple disallowance of certain hours, the ARB calculated a 1/3 reduction based on its estimate that 1/3 of the time expended on the claims was on the non-meritorious claim.

[STAA Digest IX C]
ATTORNEYS FEES

In his recommended order granting attorney fees, the ALJ in Johnson v. Roadway Express, Inc., 1999-STA-5 (ALJ Sept. 3, 1999), recommended approval of an hourly rate of $225.00 per hour for services rendered, where Complainant's attorney provided a personal affidavit attesting to his professional experience, including an extensive background in the transportation industry with over 15 years experience in the field, a law practice that is national in scope and limited almost exclusively to transportation related matters, and a former partner with comparable experience engaging in similar type practice who is compensated at $250.00 per hour. The ALJ also took into account the fact that this attorney's billing rate had been allowed by other ALJs of the USDOL.

[STAA Digest IX C]
ATTORNEYS FEES; CLERICAL FEES NOT RECOVERABLE

"Time spend performing clerical duties by an attorney is not recoverable in a petition for fees and costs. ... Traditional clerical expenses, such as local telephone calls, photocopying, and postage should not be billed separately. These expenses should be considered part of the office overhead expenses when an attorney set the hourly rate and cannot be included in an award of a representative's fee. . . . " Johnson v. Roadway Express, Inc., 1999-STA-5, slip op. at 3 (ALJ Sept. 3, 1999) (recommended decision) (citations omitted).

[STAA Digest IX C]
ATTORNEY'S FEE; REASONABLE HOURLY RATE

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB adopted the ALJ's reduction of the hourly rate stated in Complainant's attorney's fee petition to $150 where the proffered rate of $225 was not stated to be the attorney's usual hourly rate, counsel and Complainant had an agreement that if the counsel withdrew from the case prior to its conclusion, he would charge Complainant $150 per hour, and counsel had not objected to the ALJ's reduction of the rate to $150.

[STAA Digest IX D 2]
AFFIRMATIVE RELIEF; POSTING OF NOTICE

In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB ordered Respondent to post a notice at the facility where Complainant worked, which included the following language:

   Roadway's Akron facility has issued letters of warning to drivers who take one or more sick day(s) because their ability or alertness to drive is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for the drivers to begin or continue to operate the motor vehicle, but who have no personal vacation days, sick leave, or annual leave days available and do not qualify for family medical leave. This policy violated the Surface Transportation Assistance Act in this matter.

   The Surface Transportation Assistance Act does not preclude Roadway Express, Inc. from establishing mechanisms for assuring that a claimed illness is legitimate or serious enough to warrant a protected refusal to drive.

Id. at Appendix A (bold in original).

[STAA Digest X A 2]
SETTLEMENT; PRINCIPLES GOVERNING STAA SETTLEMENTS; ORAL SETTLEMENTS

In Eash v. Roadway Express, Inc., ARB No. 99-037, ALJ No. 1998-STA-28 (ARB Oct. 29, 1999), the ARB explained that STAA settlements, unlike most other settlements, are subject to the Secretary of Labor's "participation and consent." See 49 U.S.C. § 31105(b)(2)(C). Thus, once a complainant and respondent have reached agreement, the Secretary (via the ARB) also "may consent to the agreement if it protects the interests of the public and the complainant." Macktal v. Sec'y of Labor, 923 F.2d 1150, 1156 (5th Cir. 1991) (analogous provision of the ERA).

Where an oral agreement is presented for approval, the record clearly must reflect all material terms of the settlement and evidence an unequivocal declaration by the parties that they have agreed to those terms, such as a evidence of documentation of an agreement signed by the complainant, or by reaffirmance of an agreement by the complainant in open court.

Federal contract law governs the validity of any settlement of an STAA whistleblower complaint. Thus, the ARB concluded it is appropriate to refer to the Restatement (Second) of Contracts and the Restatement (Second) of Agency to discern the applicable federal common law rules, and as well as to federal case law.

In Eash, the central issue was whether a settlement agreement negotiated by Complainant's first attorney had been accepted by Complainant, or was enforceable based on an authorization by Complainant of the attorney to settle absent prior approval. The ALJ concluded that there had been an enforceable oral agreement. The ARB, however, in a detailed opinion, concluded that the settlement agreement was not enforceable, finding that Complainant neither accepted nor authorized acceptance of Respondent's settlement offer. The ARB's opinion thoroughly analyzed whether Complainant authorized acceptance, based on a close analysis of the precise wording of Complainant's settlement instructions. The Board found neither actual, either express or implied, or apparent authority. The ARB also found no evidence suggesting that Complainant ratified the settlement, such as by failing promptly to repudiate the agreement. The ARB also considered whether, assuming arguendo that Complainant made an oral acceptance of the offer of settlement, there was an intent with the eventually produced written document to memorialize an already enforceable oral agreement, or to require a written agreement as a condition precedent to a binding contract. The Board, following the criteria listed in Ciaramella v. Reader's Digest Ass'n, Inc., 131 F.3d 320, 323 (2d Cir. 1997), closely considered testimony relating to intent, and referred to language from the agreement itself, to conclude that the parties intended to reserve the right not to be bound to any oral agreement in principle, that there was no partial performance of the contract, and that the written agreement exposed matters still to be worked out. The ARB also took into consideration caselaw indicating that settlements of litigation normally should be documented either in writing or on the record in open court.

Finally, the ARB concluded that the agreement would be void for nonperformance, as Complainant had not acted to dismiss his complaint or withdraw his request for a hearing, which were conditions precedent to the written agreement.

One member of the Board concurred with the finding that a settlement had not been agreed to, but disagreed with the majority that the ALJ erred in finding that Complainant's attorney had the authority to do so. That member did not find that the ALJ's finding in this respect was not supported by substantial evidence, and noted that a high degree of proof is normally required of a party asserting that his or her attorney acted without the client's authority.

[STAA Digest XI B 1]
DISMISSAL; ABANDONMENT

In Aldasch v. Coca Cola Enterprises, ARB No. 99-093, ALJ No. 1999-STA-24 (ARB July 21, 1999), neither Complainant nor a representative for Complainant appeared at the hearing. Respondent whose attorney had traveled from Nashville, Tennessee to Syracuse, New York to attend the hearing with three officials from Respondent who were to be called as witnesses moved to dismiss. Respondent's counsel stated in support of the motion that he telephoned Complainant's current employer, who informed him that Complainant was at work and making a delivery. The ALJ issued an order to show cause, and receiving no response, concluded that Complainant had abandoned his request for a hearing. The ALJ therefore recommended dismissal under 29 C.F.R. § 18.39(b). The ARB issued an order permitting the parties to brief the matter on review, but no party responded. Finding no excuse in the record for Complainant's failure to appear at the scheduled hearing, the ARB adopted the ALJ's recommendation of dismissal.

[STAA Digest XII]
DEFERRAL TO OTHER PROCEEDINGS

The regulation at 29 C.F.R. §1978.112(c), which addresses deferral to the results of other proceedings, is a codification of the doctrine of issue preclusion. Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999).

[STAA Digest XIII C]
DEFERRAL TO OTHER PROCEEDINGS

The ARB defers to the outcome of another proceeding only if that tribunal has given full consideration to the parties' claims and rights under the STAA, and if it affords all of the procedural protections provided in hearings before ALJs. Scott v. Roadway Express, Inc., ARB No. 99- 013, ALJ No. 1998-STA-8 (ARB July 28, 1999).