USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION A -- ELEMENTS OF A WHISTLEBLOWER COMPLAINT
[Editor's note: Some casenotes allocated to this division may
include decisions in which the question was whether the
complainant carried his or her burden on the element of the
complaint rather than whether he established a prima facie case]
[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).
[Nuclear and Environmental Whistleblower Digest XI A]
BURDEN OF PRODUCTION AND PROOF IS DIFFERENT IN ENVIRONMENTAL WHISTLEBLOWER CASES AS OPPOSED TO ERA WHISTLEBLOWER CASES WHERE THE EMPLOYER'S BURDEN IN HIGHER IN SOME RESPECTS
In Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB summarized the respective burdens of production and proof under the whistleblower provisions of the environmental statutes, as opposed to the whistleblower provision of the ERA:
To establish a prima facie case of unlawful discrimination under the environmental whistleblower statutes, a complainant needs only to present evidence sufficient to raise an inference, a rebuttable presumption, of discrimination. As the Secretary and the Board have noted, a preponderance of the evidence is not required. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 1 n. 7 (ARB May 30, 2003). A complainant meets this burden by initially showing that the employer is subject to the applicable whistleblower statutes, that the complainant engaged in protected activity under the statute of which the employer was aware, that the complainant suffered adverse employment action and that a nexus existed between the protected activity and the adverse action. See Jenkins, slip op. at 16-17; Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). Contrary to the ALJ's characterization, once a complainant meets his initial burden of establishing a prima facie case, the burden then shifts to the employer to simply produce evidence or articulate that it took adverse action for a legitimate, nondiscriminatory reason (a burden of production, as opposed to a burden of proof). When the respondent produces evidence that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, the rebuttable presumption created by the complainant's prima facieshowing "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). At that point, the inference of discrimination disappears, leaving the complainant to prove intentional discrimination by a preponderance of the evidence. Jenkins, slip op. at 18. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Thus, after a whistleblower casehas been fully tried on the merits, the ALJ does not determine whether a prima facieshowing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity. Williams, slip op. at 1 n. 7; Jenkins, slip op. at 16-17.
If the complainant proves by a preponderance of the evidence that a retaliatory or discriminatory motive played at least some role in the respondent's decision to take an adverse action, only then does the burden of proof shift to the respondent employer to prove an affirmative defense and show that the complainant employee would have been fired even if the employee had not engaged in protected activity. Lockert, 867 F.2d at 519 n. 2. ...[W]hile Congress has specifically placed a higher burden on the employer in an ERA case in such circumstances, i.e., to demonstrate by "clear and convincing" evidence that it would have nevertheless taken the same action, see 42 U.S.C.A. § 5851(b)(3)(D), it has not done so with respect to employers under the CERCLA, TSCA or CAA. Under these environmental whistleblower statutes, the employer may meet that burden by only a preponderance of the evidence. See Cox v. Lockheed Martin Energy Sys., Inc., ARB No. 99-040, ALJ No. 97-ERA-17, slip op. at 4 n.7 (ARB Mar. 30, 2001).
[Nuclear & Environmental Whistleblower Digest XI]
STANDARD OF PROOF IN POST 1992 AMENDMENT ERA CASES
In Bourland v. Burns International Security
Services, ARB No. 99 124, ALJ No. 1998 ERA 32 (ARB Apr. 30, 2002),
Complainant argued on appeal to the ARB that the ALJ's use of the McDonnell Douglas v.
Green, 411 U.S. 792 (1973) test in regard to a post 1992 ERA whistleblower case was in
error and had the effect of allowing Respondent to articulate a legitimate reason for the
suspension, thereby wiping out inferences to which Complainant was entitled, and thus
preventing Respondent from having to bear its clear and convincing burden under 42 U.S.C.A.
§ 5851(b)(3)(D). The ARB found no authority supporting this argument, and rejected it.
The ARB, however, indicated that the standard of proof for post 1992 amendment ERA
whistleblower cases is as follows:
The ERA requires a complainant to
"demonstrate" that his protected behavior was a contributing factor
in the unfavorable personnel action that followed. 42 U.S.C.A. § 5851
(b)(3)(C). "Demonstrate," in this context, means to prove by a
preponderance of the evidence. Dysert v. Florida Power Corp.,
93 ERA 21, slip op. at 3 (Sec'y Aug.7, 1995), aff'd sub nom. Dysert v. U. S.
Secretary of Labor, 105 F. 3d 607, 609 10 (11th Cir. 1997); Trimmer
v. U. S. Dep't of Labor, 174 F.3d 1098, 1101 02 (10th Cir. 1999); Stone
& Webster Engineering Corp. v. Herman, 115 F. 3d 1568, 1572 (11th Cir.
1997).
Since the Complainant did not meet this statutory requirement, he could not prevail.
[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.
[N/E Digest XI]
FRAMEWORK OF ERA, 42 U.S.C. 5851
In Stone & Webster Engineering Corp. v.
Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2,
1997)(case below 93-ERA-44), the Eleventh Circuit sought to dispel some seeming perplexity of
42 U.S.C. § 5851, and the extent to which it draws from the general law of employment
discrimination. The court wrote:
In 1992, Congress amended § 5851 to codify a
particular framework regarding burdens of proof where no statutory guidance existed
before. Energy Policy Act of 1992, P.L. 102-486, § 2902(d); see also
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1164 (9th Cir.1984)
(upholding similar framework). Under the statutory framework, a complainant must first
pass a gatekeeper test before an inquiry may commence. The Secretary may investigate
only if the complainant succeeds in making a "prima facie showing" that
retaliation for protected activity "was a contributing factor in the unfavorable
personnel action alleged in the complaint." 42 U.S.C. § 5851(b)(3)(A). Then
the investigation must go forward, unless the employer "demonstrates, by clear and
convincing evidence, that it would have taken the same unfavorable personnel action in
the absence of such behavior." 42 U.S.C. § 5851(b)(3)(B).
Section 5851's reference to a "prima facie
showing" has bred some confusion, chiefly because the phrase evokes the
sprawling body of general employment discrimination law. See, e.g., Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989);
Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568,
50 L. Ed. 2d 471 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The Secretary of Labor and S&W have quarreled
over how these cases and their innumerable progeny affect Section 5851's evidentiary
burdens. But Section 5851 is clear and supplies its own free-standing evidentiary
framework. After a complainant has cleared the prima facie gatekeeper test--and
assuming she has not been knocked out by a preemptory "clear and
convincing" response from the employer--the Secretary is to investigate whether
the complainant's behavior actually was "a contributing factor in the unfavorable
personnel action." 42 U.S.C. § 5851(b)(3)(C). The burden to persuade the
Secretary falls upon the complainant, and she must do so by a preponderance of the
evidence. Dysert v. Sec. of Labor, 105 F.3d 607, 610 (11th Cir.1997). If the
complainant succeeds, the employer has a second chance to offer "clear and
convincing evidence" that it would have done the same thing anyway, i.e.,
"in the absence of such behavior." § 5851(b)(3)(D).
For employers, this is a tough standard, and not by
accident. Congress appears to have intended that companies in the nuclear industry face a
difficult time defending themselves. "Recent accounts of whistleblower harassment
at both NRC licensee ... and [Department of Energy] nuclear facilities ... suggest that
whistleblower harassment and retaliation remain all too common in parts of the nuclear
industry." H. Rep. No. 102-474(VIII), at 79 (1992), reprinted in 1992
U.S.C.C.A.N. 1953, 2282, 2297. "These reforms," the House Report
continues, "are intended to address those remaining pockets of resistance."
Id.
[Nuclear & Environmental Digest XI]
BURDEN OF PROOF IN ERA CASE
If . . . the case proceeds to a hearing before the Secretary, the complainant
must prove the same elements as in the prima facie case, but this time must prove by a
preponderance of the evidence that he engaged in protected activity which was a
contributing factor in an unfavorable personnel decision. See §
5851(b)(3)(C); see also Dysert v. Secretary of Labor, 105 F.3d 607, 609-10 (11th
Cir. 1997) (holding that Secretary's construction of § 5851(b)(3)(C), making
complainant's burden preponderance of evidence, was reasonable). Only if the
complainant meets his burden does the burden then shift to the employer to demonstrate
by clear and convincing evidence that it would have taken the same unfavorable
personnel action in the absence of such behavior. See § 5851(b)(3)(D).
[Nuclear & Environmental Digest XI]
BURDENS OF PROOF; PRIMA FACIE CASE NEED NOT BE ESTABLISHED
BY PREPONDERANCE OF THE EVIDENCE; HOWEVER, ONCE CASE FULLY TRIED
ON THE MERITS, PRIMA FACIE CASE ANALYSIS IS ANALYTICALLY
UNIMPORTANT
In Adornetto v. Perry Nuclear Power
Plant, 1997-ERA-16 (ARB Mar. 31, 1999), the ARB held that the ALJ erred in
stating that the Complainant must establish a prima facie case by a preponderance of the
evidence, and that in response to the prima facie case, the Respondent must establish by
clear and convincing evidence that it had a legitimate reason for its action.
Rather, "there is no requirement that a complainant establish a prima facie case by a
preponderance of the evidence; a complainant only is required to present evidence sufficient to
raise an inference of discriminatory motivation to establish a prima facie case. Furthermore,
Respondent only has the burden at this point of articulating a legitimate, nondiscriminatory
reason for the adverse action. Complainant must prove by a preponderance of the evidence that
complainant's protected conduct was a contributing factor in the adverse action taken. If
complainant carries that burden, Respondent can avoid liability by establishing by clear and
convincing evidence that it would have taken the same action even in the absence of protected
activity. 42 U.S.C. § 5851(b)(3)(C) and (D)." Slip op. at 4.
Further, once a case has been tried fully on the merits, it no longer serves any analytical
purpose to address and resolve the question of whether the complainant presented a prima
facie case. Instead, the relevant inquiry is whether the complainant prevailed by a
preponderance of the evidence on the ultimate question of liability. Carroll v. Bechtel Power Corp., 1991-ERA- 46
slip op. at 9-11 (Sec'y, Feb. 15, 1995), aff'd Carroll v.
U.S. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996).
XI. Burden of proof,
general statement
Under the burdens of proof and production in whistleblower
proceedings, the complainant first must make a prima facie
showing that protected activity motivated the employer's decision
to take adverse employment action. The employer may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. The
employer, however, bears only a burden of production of rebuttal
evidence; the ultimate burden of persuasion of the existence of
retaliatory discrimination rests with the complainant. Hence,
the complainant must establish that the reason proffered by the
employer is not the true reason. The complainant may persuade
directly by showing that the unlawful reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is not credible.
Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y
Jan. 6, 1992); Larry v. Detroit Edison Co., 86-ERA-
32 (Sec'y June 28, 1991); Dartey v. Zack Co., 80-
ERA-2 (Sec'y Apr. 25, 1983).
ELEMENTS OF WHISTLEBLOWER PROTECTION CASE
[N/E Digest XI]
In order to prevail in a whistleblower protection case based upon circumstantial evidence
of retaliatory intent, it is necessary to prove that:
the complainant was an employee of a covered employer;
the complainant engaged in protected activity;
the complainant thereafter was subjected to adverse action regarding his or her
employment;
the Respondent knew of the protected activity when it took the adverse action; and
the protected activity was the reason for the adverse action.
See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995);
Mackowiakv. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir.
1984); Carroll v. BechtelPower Corp., Case No. 91-ERA-46 , slip op. at 11 n.9
(Sec'y Feb. 15, 1995), aff'dsub nom., Carroll v. United States Dept. of Labor,
78 F.3d 352, 356 (8th Cir. 1996).
BURDENS OF PROOF AND PRODUCTION; ERA AMENDMENTS [N/E Digest XI]
In Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y
Feb. 15, 1995), appeal filed, No. 95-1729 (8th Cir. Mar.
27, 1995), the Secretary provided a restatement and clarification
of the burdens of proof and production in whistleblower cases.
In Zinn v. University of Missouri, 93-ERA-34 and 36
(Sec'y Jan. 18, 1996), the Secretary provides a recent, and
thorough restatement of those burdens, which varies in some
respects form the Carroll restatement. The following is
an excerpt of the Secretary's restatement:
Under the burdens of proof and production in
"whistleblower" proceedings, a complainant who
seeks to rely on circumstantial evidence of intentional
discriminatory conduct must first make a prima facie
case of retaliatory action by the respondent, by
establishing that he engaged in protected activity, that he
was subjected to adverse action, and that the respondent was
aware of the protected activity when it took the adverse
action. ... Additionally, a complainant must present
evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse
action. ... If a complainant succeeds in establishing the
foregoing, the respondent must produce evidence of a
legitimate, nondiscriminatory reason for the adverse action.
...
The complainant bears the ultimate burden of persuading
that the respondent's proffered reasons are not the true
basis for the adverse action, but are a pretext for
discrimination. ... The complainant bears the burden of
establishing by a preponderance of the evidence that the
adverse action was in retaliation for protected activity. .
. . Pursuant to Section 211(b)(3) of the ERA, however, if it
has been established that the protected activity contributed
to the adverse action, the employer must demonstrate by
"clear and convincing evidence" that it would have
taken the adverse action in the absence of the protected
activity. . . .
Slip op. at 6-8 (citations omitted).
Editor's note: Two significant additions since the
Carroll restatement are (1) reference to the
"reliance on circumstantial evidence" limitation on the
use of a prima facie case analysis, and (2) addition of
special burdens in ERA cases based on the 1992 amendments.
See Carroll v. Bechtel Power Corp., 91-ERA-46 @ 4-7
(Sec'y Feb. 15, 1995), for the Secretary's restatement of the
standard legal principles to be applied in nuclear whistleblower
proceedings.
[Editor's note: Carroll has become a standard citation in
Secretarial decisions, and appears to be considered by the
Secretary as an important statement of the legal framework.]
XI. General statement of burdens of proof &
production
To establish a prima facie case of a discriminatory discharge,
the complainant must show that he engaged in protected activity
of which the respondent was aware and that the respondent took
adverse action against him. The complainant must also present
evidence sufficient to at least raise the inference that
protected activity was the likely motive for the adverse action.
Jain v. Sacramento Mun. Util. Dist., 90-ERA-1 (Sec'y Apr.
2, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago,
82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-8. If the
complainant establishes a prima facie case, the respondent may
rebut by producing evidence that the adverse action was motivated
by legitimate, nondiscriminatory reasons. Id. at 8.
If there is rebuttal, the complainant, to prevail, must
demonstrate that the proffered reason for the adverse action is
not the real reason by showing that discriminatory reasons more
likely motivated the action or that the proffered explanation is
unworthy of credence. Texas Dept. of Comm. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Dartey, slip op. at
8. If the trier of fact decides there are dual motives, the
respondent cannot prevail unless it shows it would have reached
the same decision in the absence of protected conduct.
Id. at 9.
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at 6.
XI. Overview; Dartey
In Dartey v. Zack Company of Chicago, 82-ERA-2
(Sec'y Apr. 25, 1983), slip op. at 6-9, the Secretary set out the
general principles which he intended to apply in retaliatory
adverse action cases arising under 29 C.F.R. Part 24 and the
statutes enumerated there. The two leading cases used by the
Secretary to establish the framework for Part 24 whistleblower
cases were Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981) (Title VII case) and Mt. Healthy School
Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977)
(Constitutional adverse action case). He noted that Mt.
Healthy had been applied to section 5851 cases by the Second
Circuit. Consolidated Edison Co. of New York v. Donovan,
673 F.2d 61 (2d Cir. 1982); Jaenisch v. United States Dep't of
Labor, __ F.2d __ (No.81-4149, 2d Cir. June 28, 1982).
Cf. DeFord v. Secretary of Labor, __ F.2d __ (Nos. 81-3228
etc., 6th Cir. Feb. 10, 1983).
Under Burdine, the employee must initially present a prima
facie case consisting of a showing that he engaged in protected
conduct, that the employer was aware of that conduct and that the
employer took some adverse action against him. In addition, as
part of his prima facie case, "the plaintiff must present
evidence sufficient to raise the inference that . . . protected
activity was the likely reason for the adverse action."
Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982)
(Title VII case).
If the employee establishes a prima facie case, the employer has
the burden of producing evidence to rebut the presumption of
disparate treatment by presenting evidence that the alleged
disparate treatment was motivated by legitimate, nondiscrimatory
reasons. Significantly, the employer bears only a burden of
producing evidence at this point; the ultimate burden of
persuasion of the existence of intentional discrimination rests
with the employee. Burdine, 450 U.S. at 254-55.
If the employer successfully rebuts the employee's prima facie
case, the employee still has "the opportunity to demonstrate
that the proffered reason was not the true reason for the
employment decision . . .. [The employee] may succeed in this
either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence." Id. at 256 (citation omitted.)
The trier of fact may then conclude that the employer's proffered
reason for its conduct is a pretext and rule that the employee
has proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to establish his
case by a preponderance of the evidence. Id. at 254-65.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e., that
the employer had "dual motives."
Under Mt. Healthy, if the trier of fact reaches the latter
conclusion, that the employee has proven by a preponderance of
the evidence that the protected conduct was a motivating factor
in the employer's action, the employer, in order to avoid
liability, has the burden of proof or persuasion to show by a
preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct. Mt.
Healthy, 429 U.S. at 287; Consolidated Edison, 673
F.2d at 63.
It is important to note that the flow and presentation of
evidence in a hearing often will not be as finely tuned and
carefully orchestrated as the discussion of these rules may
suggest. These rules are to be applied by the ALJ to the extent
practicable during the hearing and, of course, to the record as a
whole at the close of the hearing.
XI. Adoption of Burdine in ERA cases
The Secretary of Labor has adopted the Supreme Court's
prescription for the allocation of burdens of proof and
production set out in Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981), and applied it to whistleblower
cases under the ERA. See Dartey v. Zack Company of
Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9.
Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec.
18, 1992).
XI. Whether analysis of prima facie case is
necessary when it is clear that complainant cannot
meet his or her ultimate burden of proof
In Hu v. Public Service Electric & Gas Co., 93-
ERA-38 (ALJ Dec. 8, 1993), the ALJ, citing St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742, 2747 (1993), declined to
address the issue of whether Complainant had established a prima
facie case of discrimination because he was "convinced that
[Complainant] had not sustained his ultimate burden of proving,
by a preponderance of the evidence, that Respondent intentionally
discriminated against him because he engaged in protected
activities." Slip op. at 9. Specifically, the ALJ found
that Respondent had "produced convincing evidence that all
the adverse employment actions that [Complainant] complains of
were for legitimate business reasons[,]" and that there is
"no evidence of pretext or dual motive" and that
Complainant had "not sustained his ultimate burden of
proving that his allegedly protected activity motivated, in whole
or in part, [Respondent's] decision to any of the adverse
employment actions he experienced." Slip op. at 9 and
12.
XI. Whether analysis of prima facie case is
necessary when it is clear that complainant cannot
meet his or her ultimate burden of proof
In Hu v. Public Service Electric & Gas Co., 93-
ERA-38 (ALJ Dec. 8, 1993), the ALJ, citing St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742, 2747 (1993), declined to
address the issue of whether Complainant had established a prima
facie case of discrimination because he was "convinced that
[Complainant] had not sustained his ultimate burden of proving,
by a preponderance of the evidence, that Respondent intentionally
discriminated against him because he engaged in protected
activities." Slip op. at 9. Specifically, the ALJ found
that Respondent had "produced convincing evidence that all
the adverse employment actions that [Complainant] complains of
were for legitimate business reasons[,]" and that there is
"no evidence of pretext or dual motive" and that
Complainant had "not sustained his ultimate burden of
proving that his allegedly protected activity motivated, in whole
or in part, [Respondent's] decision to any of the adverse
employment actions he experienced." Slip op. at 9 and 12.
XI Burden of production for prima facie
case
To establish a prima facie case, the complainant need only
present evidence sufficient to prevail until
contradicted and overcome by other evidence. Jackson v.
The Comfort Inn, Downtown,
93-CAA-7 (Sec'y Mar. 16, 1995) (citing Carroll v. Bechtel
Power Corp., 91-ERA-46 (Sec'y Feb.
15, 1995), slip op. at 11).
See Hedden v. Conam Inspection, 82-ERA-3 (Sec'y
June 30, 1982), for a pre-Dartey ERA case holding that the
burdens of proof set forth in Title VII cases are applicable.
[Nuclear & Environmental Whistleblower Digest XI A 1]
EVIDENTIARY FRAMEWORK FOR ERA WHISTEBLOWER CASES
In Kester v. Carolina Power & Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003), the ARB determined to clarify the overall evidentiary framework for ERA whistleblower cases because of continuing confusion. The Board wrote:
Prior to the 1992 amendments, the Act itself did not provide guidance as to the parties' burdens of proof. An ERA complainant, to prevail, was required to prove by a preponderance of the evidence that his protected activity was a "motivating factor" in the employer's unfavorable personnel decision. If the complainant proved his case, the employer could avoid liability if it could show, also by a preponderance of the evidence, that it would have reached the same decision even absent the protected conduct.
In 1992 Congress amended section 5851 of the Act. Now, unless an ERA complainant, before the hearing, makes a "prima facie showing" that his protected activity was a "contributing factor in the unfavorable personnel action alleged in the complaint," the Secretary of Labor will not investigate and must dismiss his complaint. Should the complainant make this initial "prima facie showing," the Secretary investigates the claim unless the employer "demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of such behavior." When the complainant reaches the hearing stage of the ERA litigation process, however, he must "demonstrate," that is, prove by a preponderance of the evidence, that his protected activity was a "contributing factor" in the employer's decision. Even then, the Secretary may not grant relief if the employer demonstrates "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence" of protected activity.
Therefore, since this case has been tried on the merits, the relevant inquiry before us is whether Kester has successfully met his burden of proof that CP&L discriminated. That burden is to prove by a preponderance of evidence that he engaged in protected activity under the ERA, that CP&L knew about this activity and took adverse action against him, and that his protected activity was a contributing factor in the adverse action CP&L took. Then, if Kester meets this burden, we will proceed to determine whether CP&L has demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. CP&L's burden of proof is in the nature of an affirmative defense and arises only if Kester has proven that CP&L fired him in part because of his protected activity. Examining whether CP&L meets this burden of proof is typically referred to as "dual motive" analysis. If Kester does not prove that CP&L fired him in part because of his protected activity, neither the ALJ nor we have reason to engage in dual motive analysis.
Slip op. at 5 8 (footnotes omitted). In extensive footnotes, the Board endeavored to correct some misinterpretations of the evidentiary framework it had detected in various ALJ opinions. The Board clarified that the 1992 amendments to the whistleblower provision of the ERA created a framework "distinct" from that of Title VII insofar as the amendments created a gatekeeper function that prevents investigation by the Secretary if, prior to the hearing, the complaint fails to make a prima facie showing that his or her protected activity was a contributing factor in the unfavorable personnel action alleged. This distinction does not mean that Title VII methodology may not be applied, when appropriate, in DOL ERA whistleblower adjudications. Rather, because most ERA complaints are grounded in circumstantial evidence of retaliatory intent, Title VII analytical frameworks are routinely applied by the ARB and reviewing courts B although an ALJ is discouraged from the unnecessary discussion of whether a prima facie case has been established once the case has been fully tried.
The Board also clarified that the Title VII burden shifting framework is applied in circumstantial evidence cases, but is not needed in direct evidence cases. The Board cautioned against confusing a litigant's "burden of proof" with the "evidentiary framework" employed to evaluate proof of discrimination. Observing that "burden of proof" has been used indiscriminately in court opinions, correctly used "the term means the necessity of finally establishing the existence of a fact or set of facts by evidence which meets a particular 'standard of proof,' e.g., preponderance, clear or convincing, beyond a reasonable doubt." Slip op. at n.17 (citation omitted; emphasis as in original).
Finally, the Board clarified that a ERA complainant is not required to produce "direct" evidence in order to trigger the dual motive analysis. Rather, "[t]he Act requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial, that the protected activity contributed to the employer's decision." Slip op. at n.17 (citation omitted).
[Nuclear & Environmental Whistleblower Digest XI A] PRIMA FACIE CASE ANALYSIS; NOT ERROR TO PROCEED DIRECTLY TO ULTIMATE QUESTION OF LIABILITY
In Hobby v. USDOL, No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), Respondent on appeal argued that the Secretary committed reversible error by failing to find that Complainant established a prima facie case. Essentially, in the Secretary's decision, the Secretary skipped over consideration of the elements of a prima facie case, and went straight to the ultimate question of whether Respondent retaliated against Complainant for engaging in protected activity. The Eleventh Circuit characterized Respondent's appeal as a complaint that the Secretary failed to "belabor" the question of a whether Complainant established a prima facie case. The court held that "it is not error to omit a formalistic analysis when the ultimate conclusion implicitly includes a finding of an inference as to that same conclusion" and cited United States Postal Service v. Aikens, 460 U.S. 711, 103 S.Ct. 1478 (1983) for the proposition that the prima facie case analysis "was never intended to be rigid, mechanized, or ritualistic." 460 U.S. at 713 15, 103 S.Ct. at 1481 82 (citations, quotations and note omitted).
[Nuclear & Environmental Whistleblower Digest XI A] PRIMA FACIE CASE ANALYSIS ONCE CASE TRIED ON THE MERITS
In Williams v. Baltimore City Public Schools System, ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), the ARB complimented the ALJ in affirming her "well written, well reasoned recommended decision." In a footnote, however, the ARB stated that the ALJ erred in examining whether Complainant had established a prima facie case, stating that "after a whistleblower case has been fully tried on the merits, the ALJ does not determine whether a prima facie showing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity."
To the same effectMourfield v. Frederick Plaas & Plass, Inc., ARB Nos. 00 055 and 00 056, ALJ No. 1999 CAA 13 (ARB Dec. 6, 2002) (criticizing ALJ's use of prima facie case analysis);
But see Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), in which the ARB analyzed whether Complainant had established a prima facie case, and thereby sharpened the issues remaining for decision. For instance, the ARB analyzed the issue of adverse action sufficiently to find that only a couple of complained of actions by the employer in fact constituted adverse action within the meaning of the environmental whistleblower statutes.
[Nuclear & Environmental Whistleblower Digest XI A] WHETHER CLOSE ANALYSIS OF ALL PROOF ELEMENTS IS NECESSARY WHEN THERE IS OVERWHELMING EVIDENCE THAT THE ELEMENT HAS BEEN ESTABLISHED
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB assumed without detailed analysis that several elements of the prima facie case had been established. For instance, the ARB found that Complainant's activities were so well publicized that it was safe to assume that her employer had knowledge of them. Similarly, where the Complainant had written nine letters to Congress and 56 internal documents, and had presented evidence of 13 employment actions over a span of about four years, the ARB merely assumed that a prima facie showing raising an inference of causation had been made, and proceeded to the determinative portions of the analysis. But see Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), finding that ALJ should have analyzed protected activity closely, even though the record clearly established it, in order to determine whether there was a causal link between the activity and workplace harassment.
[Nuclear and Environmental Whistleblower Digest XI A]
FAILURE OF COMPLAINT OR OTHER PLEADING TO SET OUT A PRIMA FACIE CASE
In Nickerson v. Plains Dairy Products, 2001-CAA-10 (ALJ July 17, 2001), Complainant was directed in a pre-hearing order to file a detailed complaint alleging how the matter fell within the CAA, his activities that he considered protected activity, and the specific discrimination alleged against the Respondent. Complainant never filed a complaint, but later did file an answer to Respondent's motion for summary judgment/motion to dismiss for failure to state a claim for which the court could grant relief. Complainant's answer, however, did not identify any specific violations. The ALJ, citing caselaw to the effect that although a pro se litigant is held to less stringent pleading requirements, must nonetheless meet minimal pleading requirements, and, in a whistleblower case, must set forth a prima facie of case retaliation, recommended that the case be dismissed.
[Nuclear & Environmental Digest XI A]
BURDEN OF PROOF AND PRODUCTION
See Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), for a recent overview of the burdens of proof and production in a circumstantial evidence case in ERA whistleblower cases.
[Nuclear & Environmental Digest XI A]
ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE CASE ANALYSIS
NOT RELEVANT
Once a case is fully tried on the merits, it is not necessary for the ALJ to determine
whether the complainant presented a prima facie case. Once the respondent has
produced evidence in an attempt to show that the complainant was subjected to adverse action
for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer
the question whether the complainant presented a prima facie case. Instead, the relevant
inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate
question of liability. Eltzroth v. Amersham
Medi-Physics, Inc., 1997-ERA-31
(ARB Apr. 15, 1999).
[Nuclear & Environmental Digest XI A]
VIEW THAT EVEN ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE
CASE ANALYSIS MAY HAVE SOME RELEVANCY
In Ilgenfritz v. U.S. Coast Guard
Academy, 1999-WPC-3 (ALJ Mar. 30,
1999), the ALJ recognized that in a fully litigated case, the analysis of a prima facie case
may not serve any useful purpose since the final decision will rest on the complainant's ultimate
burden of proof. The ALJ, however, noted that working through the prima facie
elements is still useful since the ultimate burden of proof still involves many of the elements
covered in the prima facie analysis Moreover, the ALJ noted "if the complainant,
even in a fully litigated hearing, fails to establish an element of the prima facie case,
evaluating whether an ultimate burden of proof is met may not serve any purpose." Slip
op. at n.29.
[N/E Digest XI A]
PRIMA FACIE CASE ANALYSIS IS NOT RELEVANT ONCE COMPLAINT IS
FULLY TRIED ON MERITS
Where a case is fully tried on the merits, it is not necessary to determine whether the
complainant presented a prima facie case and whether the respondent rebutted that
showing. Once the respondent produces evidence in an attempt to show that the complainant was
subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any
analytical purpose to answer the question whether the complainant presented a prima
facie case. Instead, the relevant inquiry is whether the complainant prevailed by a
preponderance of the evidence on the ultimate question of liability. If he or she did not, it matters
not at all whether he or she presented a prima facie case. If she did, whether she
presented a prima facie case is not relevant. Adjiri
v. Emory University, 97-ERA-36 @ 6 (ARB July 14, 1998).
XI.A.1. Elements of prima facie case
Mackowiak v. University Nuclear Sys., Inc., 735
F.2d 1159 (9th Cir. 1984).
Citing DeFord v. Secretary of Labor, 700 F.2d 281, 286
(6th Cir. 1983), the court set out the elements of a
discrimination claim under Section 5851: (1) That the party
charged with discrimination is an employer subject to the Act;
(2) that the complaining employee was discharged or otherwise
discriminated against with respect to his compensation, terms,
conditions or privileges of employment; and (3) that the alleged
discrimination arose because the employee participated in an NRC
proceeding. The Court of Appeals held that the phrase "in
an NRC proceeding" describes every action by quality control
inspectors because of their duty to enforce NRC regulations.
XI.A.1. Prima facie case; elements
Under Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981) (Title XI II case), the employee must initially
present a prima facie case consisting of a showing that he
engaged in protected conduct, that the employer was aware of that
conduct and that the employer took some adverse action against
him. In addition, as part of his prima facie case, "the
plaintiff must present evidence sufficient to raise the inference
that . . . protected activity was the likely reason for the
adverse action." Cohen v. Fred Mayer, Inc., 686 F.2d
793 (9th Cir. 1982) (Title VII case).
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y
Apr. 25, 1983).
XI.A.1. Elements of prima facie case; CAA
To demonstrate a prima facie case of retaliatory discharge under
section 507(a) of the Clean Air Act, 33 U.S.C. § 1367(a), a
complainant must show that
he or she was an employee of the party charged with
discrimination;
the plaintiff was engaged in a protected activity under
the Clean Air Act;
the employer took an adverse action against the
complainant; and
the evidence created a reasonable inference that the
adverse action was taken because of the plaintiff's
participation in the statutorily protected activity.
Passaic Valley Sewerage Commissioners v. United States
Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993)
(available at 1993 U.S. App. LEXIS 7906).
XI.A.1. Burden of proof; disparate treatment
cases
The employee has an initial burden of proving by a preponderance
of the evidence that retaliation for protected conduct
"played some role" in the termination decision. The
burden then shifts to the employer. The employer must show that
the employee would have been terminated even if the employee had
not engaged in the protected conduct. Lockert v. United
States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).
XI.A.1. Elements of a prima facie case
If a complainant in a whistleblower case establishes a prima
facie case, the burden that shifts to the respondent is one of
production or going forward with the evidence, not of proof.
Saporito v. Florida Power & Light Co., 90-ERA-
27 and 47 (Sec'y Aug. 8, 1994).
XI.A.1. No requirement of reporting safety
concerns to any certain individual
There is no requirement that an employee's safety concerns must
be reported to a "project ombudsman" or a health
physics technician to be protected under the ERA. Wilson
v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9,
1988).
XI.A.1. Elements of prima facie case
In order to establish a prima facie case, a complainant must show
that he or she engaged in protected activity, that he or she was
subject to adverse action, and that the respondent was aware of
the protected activity when it took the adverse action. The
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action.
Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).
XI.A.1. Prima facie case
A prima facie case requires a showing sufficient to support an
inference of unlawful discrimination, but this burden is not
onerous. Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089 (1981). To establish a prima facie
case, the complainant must show
that he or she engaged in protected activity,
that he or she was subject to adverse action, and
that the employer was aware of the protected
activity when it took the adverse action.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June
28, 1991). The complainant also must present evidence sufficient
to raise the inference that the protected activity was the likely
reason for the adverse action. Direct evidence is not required
for a finding of causation. The presence or absence of a
retaliatory motive is provable by circumstantial evidence, even
if witnesses testify that they did not perceive such a motive.
Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d
563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040, 68
L.Ed.2d 237, 101 S.Ct. 1757 (1981). Accord Mackowiak v.
University Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th
Cir. 1984).
XI. A. 1. Elements of a prima facie case
If a complainant in a whistleblower case establishes a prima
facie case, the burden that shifts to the respondent is one of
production or going forward with the evidence, not of proof.
Saporito v. Florida Power & Light Co., 90-ERA-
27 and 47 (Sec'y Aug. 8, 1994).
XI.A.1. Elements of prima facie case
Employee filed claim with Department of Labor, alleging that his
job transfer was the result of deliberate discrimination by
employer (TVA) against him due to his participation in the NRC
inspection process. The Secretary awarded relief to employee.
Both employee and TVA sought review of the Secretary's decision.
The court stated that the particular elements of a valid
discrimination claim include proof: (1) that the party charged
with discrimination is an employer subject to the Act; (2) that
the complaining employee was discharged or otherwise
discriminated against with respect to his compensation, terms,
conditions, or privileges of employment; and (3) that the
alleged discrimination arose because the employee participated in
an NRC proceeding under either the Energy Reorganization Act of
1974 or the Atomic Energy Act of 1954. DeFord v. Secretary
of Labor, 700 F.2d 281, 286 (6th Cir. 1983).
XI.A.1. Prima facie case; elements
Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).
In 1986 petitioner Richard Couty was employed within the meaning
of section 5851 by Arkansas Power and Light Company (AP&L) as
a quality control inspector at a steam-electric nuclear
generating facility in Russellville, Arkansas. Petitioner was
discharged by AP&L, ostensibly on the ground of
unprofessional behavior. Petitioner, however, believed that he
had been discharged because he had engaged in activity protected
by Section 5851. He threatened to bring various safety and
quality-control complaints to the attention of the Nuclear
Regulatory Commission besides notifying his supervisors.
The ALJ's Recommended Decision and Order determined that the
evidence did not support an inference of retaliatory motivation
on AP&L's part and therefore, concluded that petitioner
failed to establish a prima facie case of retaliatory discharge
under section 5851(a). In the alternative, the ALJ determined
that even if it could be found that petitioner had established a
prima facie case, AP&L, nevertheless, should prevail because
petitioner would have been discharged regardless of his having
engaged in protected activity. In the Secretary's Final Decision
and Order she adopted only the ALJ's finding that petitioner had
not established a prima facie case of retaliatory discharge and
dismissed the complaint. Petitioner sought review in the Eighth
Circuit pursuant to section 5851(c). The Court of Appeals held
that the ALJ made findings which satisfied the elements of a
prima facie case of retaliatory discharge: (1) engagement in
protected activity; (2) defendant's awareness of plaintiff's
engagement in protected activity; (3) plaintiff's subsequent
discharge; and (4) that the discharge followed the protected
activity so closely in time as to justify an inference of
retaliatory motive.
In Dixon v. United States Dept. of Interior, Bureau of Land Management, ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the Complainant was an environmental protection specialist for the Department of Interior, Bureau of Land Management (BLM) whose main task was related to the clean-up of the Yerlington copper mining site in Nevada. In 2000, EPA determined that the mine qualified as a superfund site under CERCLA; the state of Nevada did not agree that the site should be part of CERCLA's national priorities list; instead Nevada's Department of Environmental Protection (NDEP) developed a memorandum of understanding (MOU) with EPA and BLM in 2002 that permitted the state to take the lead in developing a work plan to clean up the site in a manner "not inconsistent with CERCLA." The ARB found that a memo indicated that the Complainant was fired because county commissioners and a congressman were concerned with his continued association with project management at the site. The ARB found that although the memo and other evidence indicated dissatisfaction with the way the Complainant did his work, it also showed that BLM had a retaliatory motive in firing the Complainant because he (1) raised concerns that the contamination at the Yerlington site was much greater than previously documented; (2) insisted that the work plans submitted by the MOU partners and ARCO (which was responsible for repaying part of the costs of the clean-up) comply with CERCLA; and (3) refused to back down from his conclusions about worker health and safety at the site. The ARB also noted that just a few hours before the BLM State Director directed a city manager to draft a rationale for firing the Complainant, the county commissioners told the State Director that they were unhappy with the Complainant's efforts to implement CERCLA at the site and wanted him removed as project manager. The Respondent failed to establish by clear and convincing evidence that it would have fired the Complainant in the absence of protected activity, and therefore the ARB affirmed the ALJ's holding that BLM had violated the SDWA and CERCLA.
[Nuclear and Environmental Whistleblower Digest XI A 2 a] CAUSATION; PROTECTED ACTIVITY AS A CONTRIBUTING FACTOR TO ADVERSE ACTION IN AN ERA CASE
In Keener v. Duke Energy Corp., ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006),
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the ARB declined to consider whether the proximity of the Complainant's protected activity and the Respondent's decision to institute a position review process was circumstantial evidence of discrimination where the "initiation of the review process was not an adverse action because it was not 'materially adverse' to [the Complainant's] terms and conditions of employment." Slip op. at 11-12 (footnote omitted). The Board found that this review was innocuous in and of itself. The Board concluded that, regardless of the motives for starting the review, the record did not contain a reasonable basis on which to conclude that this initial step would have inevitably resulted in the creation of a new position to which the Complainant would not be selected. In addition, the review occurred more than 180 days prior to filing of the complaint, and was therefore time barred. Later in the decision, the Board clarified that the official who was aware of the Complainant's protected activity was responsible for or influenced the decisions leading to a compression of two security jobs into one, opening the position to all interested applicants within the Respondent's organization, and a selection panel's decision to recommend another candidate.
[Nuclear and Environmental Whistleblower Digest XI A 2 a] CAUSATION; STANDARD OF PROOF IN CAA CASE IS THAT PROTECTED ACTIVITY WAS A MOTIVATING FACTOR IN ADVERSE ACTION; PRETEXT NOT SHOWN MERELY BY PRESENTING SOME EVIDENCE, IF SUCH EVIDENCE IS NOT A PREPONDERANCE; INTERVENING EVENT BREAKS CAUSAL INFERENCE
In Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No. 2004-CAA-5 (ARB Nov. 29, 2006),
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the Complainant had reported leaks in bags used to collect hazardous waste and refused to turn on the transfer pump that would fill those bags. A supervisor turned on the pump and left for home, leaving the Complainant at the site. Later, the Complainant was found in a position that the Respondent's witnesses considered to be sleeping, and the Complainant was fired based on the Respondent's policy that sleeping on the job was grounds for termination. The Complainant alleged that the firing was based on trumped up charges, and that he was in fact fired for complaining about turning on the transfer pump.
On appeal, the ARB stated that "[t]o show that adverse action was taken 'because of' protected activity, [the Complainant] must show that his protected activity was a 'motivating' factor in [the Respondent's] decision to dismiss him." USDOL/OALJ Reporter at 4 (footnote omitted) (the footnote contains a clarification that the ARB misspoke in Saporito v. Central Locating Servs., ARB No. 05-004, ALJ No. 2001-CAA-13 (ARB Feb. 28, 2006), when it indicated that the complainant's burden was to show that his protected activity was a "contributing" factor; it should have said "motivating" factor; the Board observed that a complainant "must prove more when showing that protected activity was a 'motivating' factor than when showing that such activity was a 'contributing factor'").
Although circumstantial evidence suggested that the Complainant was fired because he reported the emission problem, the ARB found that it was not a preponderance of the evidence. Rather, the record established that he was fired for sleeping on the job, a serious infraction of company rules.
The ARB also found that the Complainant had not established that the sleeping infraction ground was pretext. The Board found that the intervening incident of discovering the Complainant in a position where he appeared to be sleeping on the job "eliminated the causal link that otherwise might have been suggested by the temporal proximity between the protected activity and the adverse action." USDOL/OALJ Reporter at 8 (footnote omitted).
[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CAUSATION; DECISION TO DENY DISABILITY RETIREMENT MADE BY LEGALLY DISTINCT RETIREMENT SYSTEM RATHER THAN RESPONDENT
In Durham v. Tennessee Valley Authority, 2006-CAA-3 (ALJ Feb. 13, 2006), the Complainant alleged that he was denied disability by the Tennessee Valley Authority in retaliation for his prior whistleblowing complaints and other complaints to state and federal agencies. The ALJ recommended dismissal on summary decision in favor of the Respondent where the uncontested evidence was that the decision to deny the Complainant's disability retirement application was made by the TVA Retirement System (TVARS), which is a legal entity separate and distinct from TVA, the TVARS was not the Complainant's employer, and the TVARS decision makers had no knowledge of the Complainant's protected activity.
XI.A.2.a. Distinction between raising
inference and proving motivation
To establish a prima facie case, a complainant need produce only
enough evidence to raise the inference that the motivation for
the adverse action was his protected activity -- not to
establish motivation. Pillow v. Bechtel
Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).
[Nuclear and Environmental Whistleblower Digest XI A 2]
CAUSATION; LEGITIMATE NON-DISCRIMINATORY REASONS FOR DISCHARGE PREDATING THE PROTECTED ACTIVITY DO NOT AXIOMATICALLY SEVER THE CAUSAL LINK IF THE COMPLAINANT WOULD NOT HAVE BEEN DISCHARGED "BUT FOR" PROTECTED ACTIVITY
In Bhat v. District of Columbia Water and Sewer Authority, 2003-CAA-17 (ALJ Nov. 1, 2005), the manager who was responsible for the Washington, D.C. Water and Sewer Authority's (WASA) compliance with a lead monitoring program mandated by federal Environmental Protection Agency (EPA), filed a whistleblower complaint under the Safe Drinking Water Act of 1974 (SDWA), 42 U.S.C. § 300j-9(i), alleging that she was fired because she blew the whistle on the lead levels in the D.C. water supply by informing the EPA about the problem. The Respondent claimed that the manager had been fired because she had received two successive unsatisfactory performance evaluations and not because of activity protected under the SDWA. The ALJ rejected this defense, observing that, although the manner in which the Complainant carried out her duties and responsibilities was occasionally abrupt and abrasive and had resulted in a justifiably unsatisfactory performance evaluation in 2001, the Respondent had not followed its own personnel policies, practices and procedures in dealing with the Complainant's alleged later performance deficiencies. The ALJ wrote:
[I]t is a well-settled principle in whistleblower adjudications that the protections afforded by these statutes are not reserved exclusively for the model employee. Dale v. Step 1 Stairworks, 2002-STA-00030 (ALJ April 11, 2003), aff'd, in part, and rev'd in part, on other grounds (ARB March 31, 2005). Consequently, the polemic that performance difficulties preceding protected activity "axiomatically" severs the causal link ignores the fact that legitimate reasons pre-dating the protected activity, alone, are not sufficient to end the inquiry if, despite the reasons alleged, the whistleblower would not have been terminated "but for" the protected activity. See, Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982); Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Passaic Valley, supra.
Slip op. at 25.
[Nuclear & Environmental Whistleblower Digest XI A 2 a]
CAUSATION; EVIDENCE THAT COMPLAINANT'S POOR COMMUNICATIONS AND TEAMWORK SKILLS CAUSED DEFICIENT RATING RATHER THAN PROTECTED ACTIVITY; "PROVOCATION" DOCTRINE DID NOT APPLY WHERE COMPLAINANT'S LANGUAGE WAS NOT IMPLUSIVE BUT DELIBERATE
In Smalls v. South Carolina Electric & Gas, ARB No. 01 078, ALJ No. 2000 ERA 27 (ARB Feb. 27, 2004), the ARB found overwhelming evidence that the Complainant received a deficient rating on a performance evaluation because his communications and teamwork skills were not satisfactory, and the record established that pursuit of ERA protected safety related issues did not contribute to the rating. The Board also found that the "employee provocation" doctrine did not apply to excuse the Complainant's objectionable conduct where the Complainant did not engage in impulsive, uncalculated behavior, but instead deliberately and unnecessarily relied on abrasive language and a confrontational approach. SeeHarrison v. Roadway Express, Inc., ARB No. 00 048, ALJ No. 1999 STA 37, slip op. at 9 15 and cases there cited (ARB Dec. 31, 2002).
[Nuclear & Environmental Whistleblower Digest XI A 2 a]
MOTIVATION TO DISCRIMINATE; MERE SPECULATION DOES NOT CARRY COMPLAINANT'S BURDEN OF PROOF
In Hasan v. J.A. Jones, Inc., ARB No. 02 123, ALJ No. 2002 ERA 5 (ARB June 25, 2003), the ARB affirmed the ALJ's decision finding that Respondent's decision makers were not aware of Complainant's previous whistleblowing activities when they decided not to promote him, and that Complainant had produced no evidence that his whistleblowing had motivated Respondents to take other adverse actions such as failing to increase his salary, laying him off, and refusing to transfer or rehire him.
[Nuclear & Environmental Whistleblower Digest XI A 2 a]
RETALIATORY MOTIVE; COMPLIANCE WITH ARB ORDER TO CORRECT EMPLOYMENT REFERENCES; MERE REFERENCE TO EARLIER IMPROPER REFERENCE WITHOUT PROOF OF RETALIATORY MOTIVE IS NOT ERA VIOLATION
In Doyle v. Westinghouse Electric Co., LLC, ARB Nos. 01 073 and 01 074, ALJ No. 2001 ERA 13 (ARB June 30, 2003), the ARB affirmed decisions of the ALJ finding that Complainant had failed to prove that Respondents had acted with retaliatory motive when complying with an ARB order to (1) write to a credit reporting agency to notify the agency that the ARB had found that its earlier denial of Complainant unescorted access to a nuclear plant had been improper and (2) provide a neutral employment reference letter. Complainant argued that Respondent's letter to the credit reporting agency and the copy sent to Complainant's attorney violated the ERA because they identified him as having engaged in protected activity. (one of the credit reporting agency's products was employment reports for prospective employers).
The ALJ found that under the circumstances it would have been unavoidable for Respondent not to reference the prior disqualification in its letter to the credit reporting agency in compliance with the ARB's order. Doyle v. Westinghouse Electric Co., 2001 ERA 13 (ALJ June 27, 2001) (order granting summary decision to Westinghouse). The ALJ wrote: "Without further indications of specific adverse action, the existence of this letter, which contains no language or instructions detrimental to Complainant, is not sufficient to establish the requisite elements of a prima facie case." Slip op. at 4 (citation omitted).
Complainant had also named Respondent's attorney and her law firm as respondents. The ALJ in a separate ruling dismissed these respondents for the additional reason that they were not Complainant's employer. Doyle v. Westinghouse Electric Co., 2001 ERA 13 (ALJ June 27, 2001) (order granting summary decision to Respondent's attorney and law firm).
[Nuclear & Environmental Whistleblower Digest XI A 2 a] KNOWLEDGE OF PROTECTED ACTIVITY; ADJUDICATOR NOT REQUIRED TO RULE ON EVERY INSTANCE OF ALLEGED ACTIVITY WHERE IT WAS CLEAR THAT COMPLAINANT HAD MADE A POINT OF NOTIFYING HER SUPERIORS
Where Complainant had made a point of notifying her supervisors of her activities, the ARB found it safe to assume that Respondent was aware of Complainant's protected activity, even though Respondent may not have had knowledge of every individual activity. Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003).
[Nuclear & Environmental Digest XI A 2 a]
MOTIVATION; RESPONDENT'S PERCEPTION THAT MATTERS, NOT COMPLAINANT'S ACTUAL ACTIONS OR MOTIVES
In Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001), Complainant maintained that he had an extremely limited conversation with a TV station prior to broadcast of a report on a change in security procedure at a local nuclear power plant. The ARB construed Complainant's argument as being that Respondent erroneously concluded that he had engaged in protected activity by giving information to the TV station regarding details of a restructuring plan and turning over to the TV station an e-mail concerning an FBI security alert. There was conflicting testimony about what Complainant said to the TV station and whether he provided the e-mail to the station - the ALJ concluded that Complainant was the source of the TV station's information, and the ARB found no reason not to credit the ALJ's determination on this matter. The ARB, however, wrote that it was not important to the analysis whether Complainant gave the information and e-mail to the TV station, nor what motive Complainant may have had in making such disclosures (if, in fact, made by Complainant). Moreover, the ARB found that it was not important whether Complainant's asserted belief that the security restructuring plan would make the nuclear facility vulnerable to attack was a reasonable belief. Rather, it was Respondent's motive for taking action against Complainant that was decisive - the evidence must support a finding that retaliatory motive animated the adverse employment action taken.
The ARB credited Respondent's representations that it terminated Complainant because it believed that: 1) Complainant disclosed security information about the nuclear power plant to unauthorized personnel at the TV station; 2) Complainant did so not because he was concerned about the safety of the facility, but because he would not be eligible to apply for a new tactical response officer (armed guard) position and would therefore be downgraded to an unarmed guard; and 3) Complainant obstructed their investigation into the disclosure and flatly lied about his activities. Thus, the ARB found that Respondent terminated Complainant's employment not because they believed that he had engaged in activity protected by the ERA, but because it believed that he had turned over security information to an unauthorized person to further his own personal interests, and then lied about it.
One member of the Board dissented from the conclusion that Respondent was not motivated by retaliatory animus in terminating Complainant's employment, finding that Complainant's protected activity of contact with the news media was a contributing factor in the termination. The dissent concluded: "Phillips had the right under the ERA to anonymous and unfettered communication of his concerns regarding the security of the guard restructuring plan, which communication under the facts he reasonably believed was in furtherance of the purposes underlying the ERA. Respondent cannot lawfully assert an employment-related obligation on Phillips' part for full disclosure of his role in derogation of this federal right. "
[Nuclear & Environmental Digest XI A 2 a]
CAUSATION; RETALIATORY ANIMUS
In Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ No. 1996-ERA-34 (ARB Mar. 30, 2001), Complainant had settled several earlier whistleblower complaints. He subsequently contacted the NRC with a concern over certain language in the settlement agreement (the NRC in fact found that portions of the agreement were in conflict with NRC regulations and public policy). Thereafter, Complainant requested that he be provided with copies of reports of psychological testing done by physicians hired by Respondent in preparation for the damages stage of the hearing in the earlier cases (because the cases had never gone to trial, they had not been previously released). Complainant believed that the settlement agreement entitled him to copies of these reports. When Respondent declined to release the reports, Complainant filed a whistleblower complaint alleging that the refusal was in retaliation for his going to the NRC about the settlement.
Complainant argued that the temporal proximity between his contact with the NRC and Respondent's refusal to turn over the records raised an inference of causation, and apparently, that this inference compelled a finding that retaliatory animus was a contributing factor in the refusal to turn over the records. The ARB found, however, that although temporal proximity might provide powerful evidence of retaliatory animus, the ALJ properly found based upon all of the facts presented to him that Respondent was not motivated by retaliatory animus, Respondent believing that, having settled the complaint, it was under no obligation to produce the records, and that the records were subject to the attorney work product privilege. The ARB held that "[t]he ALJ did precisely what was required by the circumstances of this case: he weighed all of the relevant evidence regarding [Respondent's] motivation, including the evidence regarding temporal proximity, and determined that [Complainant] had not proven his case."
[Nuclear & Environmental Digest XI A 2 a]
CONTRIBUTING FACTOR; BURDEN OF PROOF ON COMPLAINANT
In Hasan v. Commonwealth Edison Co., ARB No. 00-043, ALJ No. 1999-ERA-17 (ARB Dec. 28, 2000), Complainant was a contract engineer engaged as a design engineer during a two-year effort to restart a nuclear unit shut down to replace reactor fuel and perform corrective maintenance. During his employment, he raised a concern about correct modeling of a hinge. As a result of his raising of the concern, the modeling of the hinge was changed. At the end of the maintenance project, Complainant was released, together with hundreds of other contract engineers. Complainant subsequently filed a complaint with OSHA alleging that the reason for his termination was retaliation for raising a safety concern. The ALJ found that Complainant had not met his burden of proving that the protected activity contributed to the termination of his temporary employment. Respondent established that Complainant was brought on for a limited term understood by everyone involved and normal practice in the trade. The ALJ also declined to find discrimination alleged by Complainant for Respondent's refusal to hire him for two temporary positions that opened after he was terminated from employment where the ALJ found that Complainant was not qualified for either position.
The ARB agreed with the ALJ's decision, noting that "[t]he complainant in an ERA whistleblower case has the burden of proof and that burden must be met by a preponderance of the evidence. Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997)." In the instant case, the ARB concurred with the ALJ that Complainant had not met his burden of proving that his protected behavior was a contributing factor in the personnel action. The ARB also held that even if Complainant had met that burden, Respondents had offered clear and convincing evidence that it would have taken the same action anyway.
[Nuclear & Environmental Digest XI A 2 a]
REFUSAL TO HIRE; PRIMA FACIE CASE NOT ESTABLISHED BASED MERELY ON COMPLAINANT'S UNSOLICITED APPLICATION FOR A JOB
In Hasan v. Commonwealth Edison Co., ARB No. 00-028, ALJ No. 2000-ERA-1 (ARB Dec. 29, 2000), Complainant, a contract engineer, filed an ERA whistleblower complaint alleging discriminatory refusal to hire. He had previously filed a complaint against the same Respondents based on alleged discriminatory discharge and refusal to rehire. The essential difference in the complaints was that Complainant remained unemployed.
While the first complaint was still pending on review before the ARB, Respondents filed motions to dismiss the second complaint with the ALJ, arguing that Complainant failed to allege facts necessary to establish a prima facie case under a "refusal to hire" theory. The ALJ issued an order to show cause why the motions should not be granted, and after consideration of Complainant's response, found that facts sufficient to establish a prima facie case had not been alleged. In the absence of a viable claim, the ALJ saw no reason for discovery or an evidentiary hearing, and therefore recommended that the ARB dismiss the complaint.
On appeal, Complainant -- appearing pro se -- argued that the ALJ's proposed disposition of the matter would be contrary to the Secretary's decision in Studer v. Flowers Baking Company of Tenn., Inc., 1993-CAA-1 (Sec'y June 19, 1995) (Rule 12(b)(6) dismissal only appropriate when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint). Complainant argued that he would have been able to establish the facts in support of his claim if the ALJ had granted him discovery and an evidentiary hearing.
The ARB observed that a complainant must allege the elements of a prima facie case in a ERA whistleblower case. In regard to element three of a prima facie case that the employer took some sort of adverse action against the complaint four factors must be considered in a complaint grounded in alleged refusal to hire: the complainant must show: 1) that he or she applied and qualified for a job for which the employer was seeking applicants; 2) that, despite his or her qualifications, he or she was rejected; and 3) that after his or her rejection, the position remained open. Thus, Complainant was required to at least allege that Respondents had a job opening for which he was qualified something Complainant had not done.
The ARB also found that Complainant failed to satisfy element four of a prima facie case because he had not alleged the existence of any facts that would raise an inference that his protected activity was likely a contributing factor in Respondents' failure to respond to his unsolicited application. The ARB agreed with the ALJ that Complainant had done nothing more than simply allege that he submitted his resume to Respondents but remains unemployed a naked allegation that is insufficient to support a claim of discrimination. The ARB concluded:
A complainant cannot simply "file a conclusory complaint not well-grounded in fact, conduct a fishing expedition for discovery, and only then amend the complaint in order to finally set forth well-pleaded allegations." Oreman Sales v. Matshushita Elec. Corp., 768 F.Supp. 1174 (E.D. La. 1991). If the complainant fails to allege a prima facie case, the matter is subject to immediate dismissal. See Lovermi v. Bell South Mobility, Inc., 962 F.Supp. 136 (S.D. Fla. 1997). Given Complainant's failure to allege a prima facie case, we concur with the ALJ that the instant complaint should be dismissed.
Slip op. at 5 (footnote omitted).
[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 a]
CAUSAL LINK FOR ADVERSE ACTION; CONSIDERATION OF COMPLAINANT'S
PERCEIVED CONFRONTATION STYLE
In Jarvis v. Battelle Pacific NW
Laboratory,1997-ERA-15 (ARB Aug.
27, 1998), Complainant had been suspended for one-week following an incident in which he had
made what were perceived as abrasive comments to a DOE supervisor in connection with a
personnel matter involving Complainant's wife, who worked for DOE. Earlier, Complainant had
engaged in protected activities. The ARB, however, concluded that these protected activities
were not the cause of his one-week suspension. Rather, the ARB concluded that Complainant
was suspended because of the abrasive comments. The ARB found that, although the individuals
who made the decision to suspend may have been aware of prior criticism of Complainant in
connection with his confrontational manner, some instances of which may have been manifested
in connection with his earlier protected activity, the concerns of the committee members who
suspended Complainant were unconnected with the substance of any environmental issues that
Complainant may have raised. The ARB found that the inter-personal frictions evidenced in
these earlier incidents merely provided context to events leading to the suspension. The ARB
also found in regard to dual motive analysis, that even if Complainant's earlier protected activity
played some part in the decision to suspend him, Respondent had presented clear and convincing
evidence that it would have suspended Complainant even in the absence of such protected
activity.
[Nuclear & Environmental Digest XI A 2 a]
CAUSAL LINK TO PROTECTED ACTIVITY; LACK OF EVIDENCE THAT
SUPERVISOR REACTED NEGATIVELY TO COMPLAINANT'S SAFETY
RECOMMENDATION; EXISTENCE OF OTHER REASONS FOR ADVERSE
EMPLOYMENT ACTION
In Miller v. Tennessee Valley
Authority, 1997-ERA-2 (ARB Sept. 29,
1998), Complainant's security clearance was revoked based on the recommendation of a
psychologist who conducted a fitness for duty examination. Earlier, Complainant had engaged in
protected activity when she raised concerns about a plan to install a new handprint identification
security system. The ARB found, however, that Complainant's supervisor did not dismiss, reject,
downplay, or conceal Complainant's opinions about problems with implementation of the new
security system, but instead solicited her views for incorporation into his report on the subject,
and subsequently met with the Project Manager and others to discuss these concerns (and those
of others as well) prior to implementation of the project. Thus, the ARB concluded that the
supervisor's actions belied a discriminatory motive. In addition, the ARB noted that there was
ample evidence that the supervisor's decision to request a fitness for duty examination was
motivated by some troubling statements made by Complainant about workplace violence, and by
company policy to refer an employee for a fitness for duty examination when the supervisor
questioned the employee's ability to continue to work safely. Finally, the ARB found that the
record established that the psychological evaluation and recommended job constraints were
entirely bona fide.
XI A 2 a CAUSATION; DOE'S FUNDING OF CONTRACTOR'S LITIGATION
EXPENSES
In Varnadore v. Oak Ridge National Laboratory,
95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of a
complaint of the allegedly wrongful funding of contractor
litigation by the DOE because there was an absence of proof that
the decision to fund the litigation was motivated in part by
discriminatory animus.
XI.A.2.a. Failure to establish adverse action motivated by
protected activity
In Hasan v. System Energy Resources, Inc., 89-ERA-
36 (Sec'y Sept. 23, 1992), aff'd, Hasan v. Reich, No. 92-
5170 (5th Cir. May 4, 1993) (unpublished), the Complainant failed
to prove that his release as a temporary, seconded employee (an
employee generally brought in to solve specific problems) by the
Respondent was motivated by protected activity in contravention
of the ERA's anti-discrimination requirements. The Complainant
had requested that his assignment be extended to the end of the
school year so that his children could finish out the term, but
the Respondent declined. For several months prior, the
Complainant had made several safety related complaints both to
his supervisors and to the NRC. NRC conducted audits at least in
part directed at problems pointed out by the Complainant. The
Complainant, however, was invited to participate in the audits;
his supervisors knew he had concerns about the issues NRC was
evaluating, but still assigned to work on solving those problems;
he received a positive evaluation from his employer, concurred in
by the Respondent (the employer had provided contract employees
to the Respondent power plant).
XI.A.2.a. Raising inference is not onerous burden
Complainant's prima facie case in a FWPCA whistleblower
proceedings requires a showing sufficient to support an inference
of unlawful discrimination. This burden is not onerous. Direct
evidence is not required for a finding of causation. The
presence or absence of retaliatory motive is provable by
circumstantial evidence, even in the event that witnesses testify
that they did not perceive such a motive. McMahan v.
California Water Quality Control Board, San Diego Region,
90-WPC-1 (Sec'y July 16, 1993) (citing cases).
XI.A.2.a. Prima facie case established
Where the respondent denied that his decision to terminate the
complainant was related to the complainant's contacts with the
NRC was corroborated only by his wife, there was evidence that
the respondent was actively looking for the source of information
flowing to the NRC and suspected the complainant (who was one of
only three employees at the time), and the complainant's
termination occurred only two days after the respondent learned
that the complainant had given a client a NRC telephone number,
the complainant established a prima facie case of retaliation
under the ERA. Lederhaus v. Donald Paschen & Midwest
Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26,
1992), slip op. at 6-7.
XI.A.2.a. Lack of discriminatory motive
Where the complainant conceded in his own deposition testimony a
lack of discriminatory motive by the selecting managers involved
in the filling of a position that the complainant had applied
for, the complainant failed to establish a prima facie case of
nonselection based on retaliation for protected activity.
Riden v. Tennessee Valley Authority, 89-ERA-49
(Sec'y July 18, 1990).
A complainant may carry his or her burden of proof on any element
of a discrimination claim by direct or circumstantial evidence.
"The presence or absence of a retaliatory motive is a legal
conclusion and is provable by circumstantial evidence . . .
." Ellis Fischel State Cancer Hosp. v. Marshall, 629
F.2d 563, 566 (8th Cir. 1980). Bartlik v. Tennessee Valley
Authority, 88-ERA-15 (Sec'y June 24, 1992), slip op. at
3.
XI. A. 2. b. i. Circumstantial evidence
A complainant may establish causation by showing direct or
circumstantial evidence of anti-whistleblower animus on the part
of a respondent and its managers. Dillard v. Tennessee
Valley Authority, 90-ERA-31 (Sec'y July 21, 1994)
(language is from discussion of whether inference of causation is
raised for a prima facie case).
XI.A.2.b.i. Direct or circumstantial evidence
A complainant may make the required showing of knowledge (that
the respondent was aware of the complainant's protected
activities when it took the adverse action) by either direct or
circumstantial evidence. Samodurov v. General Physics
Corp., 89-ERA-20 (Sec'y Nov. 16, 1993).
In Caldwell v. EG&G Defense Materials, Inc., ARB No. 05-101, ALJ No. 2003-SDW-1 (ARB Oct. 31, 2008), the Complainant was fired two days after the Respondent received notice of his filing of a whistleblower complaint with OSHA. The ARB stated that "[w]hile a temporal connection between protected activity and an adverse action may support an inference of retaliation, the inference is not necessarily dispositive." Reviewing the facts of the case, the ARB found that the record established legitimate reasons for the Respondent's actions in suspending and ultimately terminating the Complainant's employment, and that the Complainant had not proven that those reasons were pretext for discrimination or retaliation based on protected activity.
[Nuclear and Environmental Whistleblower Digest XI A 2 b ii] TEMPORAL PROXIMITY; MAY BE SUFFICIENT TO CARRY COMPLAINANT'S BURDEN OF PROOF WHERE EMPLOYER'S EXPLANATIONS FOR ADVERSE ACTION ARE NOT CREDIBLE
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB found that temporal proximity between the Complainant's protected activity and the adverse employment action were sufficient to meet the Complainant's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action where the Employer's explanations of legitimate reasons for the adverse action where not credible. A significant factor in the ARB's view was the Respondent's unwillingness to permit the Complainant to complete his performance improvement plan; the ARB found that unwillingness to evidence discriminatory motive. Another factor was the Respondent's greater concern with QC inspectors' performance of an allegedly unauthorized test of a crane than with the danger posed by the crane. The Complainant was a QC manager. He and other QC inspectors were held responsible for the allegedly unauthorized test even though several management-level employees were present at an initial test and approved of it. Although the Complainant had not behaved well at a meeting, there was testimony that managers had yelled, screamed, used profanity and intimidation at meetings, that other employees had become upset and used profanity at meetings, and that the Complainant was dealt with more harshly than other employees.
[Nuclear and Environmental Whistleblower Digest XI A 2 b ii] CAUSATION; PROXIMITY IN TIME; INFERENCE NOT AVAILABLE FOR INITIATION OF POSITION REVIEW THAT ULTIMATELY LEAD TO COMPLAINANT'S LAY OFF WHERE RECORD DID NOT SHOW BASIS TO CONCLUDE THAT SUCH A RESULT WAS INEVITABLE
In Keener v. Duke Energy Corp., ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006),
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the ARB declined to consider whether the proximity of the Complainant's protected activity and the Respondent's decision to institute a position review process was circumstantial evidence of discrimination where the "initiation of the review process was not an adverse action because it was not 'materially adverse' to [the Complainant's] terms and conditions of employment." Slip op. at 11-12 (footnote omitted). The Board found that this review was innocuous in and of itself. The Board concluded that, regardless of the motives for starting the review, the record did not contain a reasonable basis on which to conclude that this initial step would have inevitably resulted in the creation of a new position to which the Complainant would not be selected. In addition, the review occurred more than 180 days prior to filing of the complaint, and was therefore time barred. Later in the decision, the Board clarified that the official who was aware of the Complainant's protected activity was responsible for or influenced the decisions leading to a compression of two security jobs into one, opening the position to all interested applicants within the Respondent's organization, and a selection panel's decision to recommend another candidate.
[Nuclear and Environmental Whistleblower Digest XI A 2 b ii] CAUSATION; PROXIMITY; DISTANCE IN TIME; INTERVENING EVENTS
In Keener v. Duke Energy Corp., ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006),
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a 13 month gap between the time of the Complainant's protected activity and his ultimate discharge, together with the confluence of several independent intervening events, was sufficient to break any causal connection. The Board discounted the start of a position review as sufficient to raise a causal connection because there was no basis in the record for finding that the subsequent lay off was an inevitable consequence of the review, and because the review occurred more than 180 days prior to the filing of the complaint.
XI.A.2.b.ii. Six month interval
Six months between an initial internal complaint and a job
transfer was found in Mandreger v. The Detroit Edison
Co., 88-ERA-17 (Sec'y Mar. 30, 1994) to constitute a
sufficient temporal nexus between protected activity and adverse
action to raise the inference of causation.
[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
TEMPORAL PROXIMITY; INFERENCE OF CAUSAL RELATIONSHIP WITH ADVERSE ACTION PRECLUDED WHERE INTERVENING EVENT
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant whose history as a whistleblower was well known and who had issued several non-conforming reports (which he characterized as "imminent threats) while providing electrical systems inspection services on the Trans Alaska Pipeline System, requested reassignment after Alyeska changed the standards to be used to conduct inspections. Complainant was placed on inactive status, eligible for reassignment. The ALJ found that the closeness in time between Complainant's protected activity and the layoff was compelling evidence of causation. The ARB disagreed:
Temporal proximity may be sufficient to raise an inference of causation in an environmental whistleblower case. See, e.g.,Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). When two events are closely related in time it is often logical to infer that the first event (e.g. protected activity) caused the last (e.g. adverse action). However, under certain circumstances even adverse action following close on the heels of protected activity may not give rise to an inference of causation. Thus, for example, where the protected activity and the adverse action are separated by an intervening event that independently could have caused the adverse action, the inference of causation is compromised. Because the intervening event reasonably could have caused the adverse action, there no longer is a logical reason to infer a causal relationship between the activity and the adverse action. Of course, other evidence may establish the link between the two despite the intervening event. As the court held in Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000), "we have ruled differently on this issue [raising an inference of retaliatory motive based on temporal proximity] . . . depending, of course, on how proximate the events actually were, and the context in which the issue came before us." (Emphasis added.)
Here, it is apparent that Tracanna's request for removal from his inspector position on the AKOSH Project was an intervening event of sufficient weight to preclude any inference of causation which otherwise would have been drawn from the nearness of Tracanna's protected activity to his layoff. Clearly, once Tracanna had requested to be removed from his position, ASIS' options were extremely limited. Either ASIS could have placed Tracanna in another position, or it could have laid him off. However, in light of Tracanna's intervening request to be removed from the AKOSH Project, it cannot be assumed that ASIS's decision to place him on layoff status was causally related to his protected activity and retaliatory.
Slip op. at 7-8 (footnote omitted).
[Nuclear & Environmental Digest XI A 2 b ii]
TEMPORAL PROXIMITY
In Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the temporal proximity of the adverse action and Complainant's protected activity, together with other circumstantial evidence was sufficient to support a finding that Respondent engaged in a coverup of safety hazards to facilitate fuel load and start up at its nuclear facility, with the coverup including removal of Complainant from a position where he could continue to raise safety concerns that threatened to delay the start up of the facility.
CompareThompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ No. 1996-ERA-34 (ARB Mar. 30, 2001) (temporary proximity only part of the picture; ALJ properly weighs all the evidence in regard to retaliatory animus; in case sub judice temporal proximity was not enough to establish such animus).
[N/E Digest XI A 2 b ii]
CAUSATION; PROXIMITY IN TIME
"Proximity in time between protected activity and an adverse action is solid
evidence of causation." White v. The Osage Tribal Council, 95-SDW-1,
slip op. at 4 (ARB Aug. 8, 1997).
[N/E Digest XI A 2 b ii]
TEMPORAL PROXIMITY TOO DISTANT
The passage of three years from the time of Complainant's protected activity and alleged
adverse action, with evidence of lack of animus on the part of Respondents after the protected
activity (Complainant had been hired on five different occasions subsequent to the protected
activity), convinced the Board in Bonanno v. Stone
& Webster Engineering Corp., 95-ERA-54 and 96-ERA-7 (ARB Dec. 12,
1996), that there was no causal
connection between the protected activity and the alleged adverse actions. See Shusterman v.
EBASCO Services, Inc., 87-ERA-27, slip op. at 8-9 (Sec'y Jan. 6, 1992), aff'd mem.,
Shusterman v. Secretary of Labor, No. 92-4029 (2d Cir. Sept. 24, 1992) (four-year interval,
without credible evidence to contrary, establishes absence of causal connection between
protected
activity and adverse action).
TEMPORAL PROXIMITY; ONE YEAR TOO DISTANT; INTERVENING
LEGITIMATE REASON FOR ADVERSE EMPLOYMENT ACTION
[N/E Digest XI A 2 b ii and iii]
Where nearly a year had elapsed between Complainant's filing of several reports under a
program encouraged by Respondent for employees to identify areas of concern, and the decision
to terminate Complainant's employment, the evidence was insufficient to establish that the
termination decision was inspired by the protected activity.
In addition, the Board indicated that the existence of an intervening, legitimate reason for
terminating Complainant's employment -- his attendance at a conference contrary to express
instruction (his second violation of company policy in this respect) -- was the more important
factor.
Evans v. Washington Public Power Supply
System, 95-ERA-52 (ARB July 30, 1996), citing Williams v. Southern
Coaches,
Inc., 94-STA-44 (Sec'y Sept. 11, 1995) (legitimate reason for termination occurring after
protected activity may negate any temporal inference of causation).
CAUSATION; TEMPORAL PROXIMITY, THOUGH SUFFICIENT ESTABLISH
PRIMA FACIE CASE, IS ONLY ONE FACTOR IN DECIDING ULTIMATE
QUESTION
[N/E Digest XI A 2 b ii]
In Jackson v. Ketchikan Pulp Co., 93-WPC-7
and
8 (Sec'y Mar. 4, 1996), one Complainant excepted to the
ALJ's conclusion that he was fired for being out of his work
area rather than his protected activity where there was
temporal proximity between the protected activity and the
discharge.
The Secretary pointed out that temporal proximity may be
sufficient to establish a prima facie case, but that
it is only one factor to weigh in deciding the ultimate
question of whether a complainant has proved by a
preponderance of the evidence that retaliation was a
motivating factor in the adverse action.
In Jackson, the Secretary noted that the ALJ had
carefully weighed the evidence, but because there was some
circumstantial evidence suggesting that retaliation may have
in part motivated the Respondent, assumed as did the ALJ in
an alternative ruling, that retaliation was a motivating
factor. Nonetheless, the record supported the ALJ's
conclusion that the Respondent would have fired the
Complainant even if he had not engaged in protected
activity.
INFERENCE OF CAUSATION; PROXIMITY IN TIME ALONE MAY NOT BE
SUFFICIENT TO RAISE INFERENCE IN NON-DISCHARGE CIRCUMSTANCE [N/E Digest XI A 2 b ii]
In Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), the court disagreed with the
concurring judge's suggestion that proximity in time between the
protected activity and the adverse employment action is, by
itself, sufficient to establish the inference of causal nexus
element of a prima facie case. The court distinguished
between instances in which a discharge followed soon after the
protected activity, in which case proximity in time justifies the
inference of retaliatory discrimination, and instances in which
the complainant simply was not rehired following the expiration
of an employment contract, in which case "something more
than temporal proximity" must be shown.
Bartlik, 1996 U.S. App. LEXIS 394 at *10 n.7. The
court agreed with the concurring judge that making a prima
facie case is not onerous. Nonetheless, the court indicated
that it is not justifiable to conclude that "anyone hired to
identify safety problems who does his job and does identify
problems, whose contract is not renewed would make a prima
facie of discriminatory retaliation."
Bartlik, 1996 U.S. App. LEXIS 394 at *10 n.7.
Editor's note:CompareZinn v.
University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18,
1996), in which the Secretary found that the ALJ properly
concluded that the temporal proximity between the Complainant's
protected activity which began in August 1992 and continued
through the time of the Respondent's refusal to initiate formal
consideration of the Complainant for promotion in February 1993
was sufficient to support an inference of a causal link between
the protected activity and the adverse action.
INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; EXTENDED
PERIOD; PRIMA FACIE CASE THEORY [N/E Digest XI A 2 b ii]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary
held a gap of almost four years between alleged protected
activity and adverse employment action was too extended a period
to be considered temporally proximate. The Secretary noted that
"the purpose of all of the elements of a prima facie
case in a retaliation case is to permit, under specified
circumstances, a finding of retaliation, even in the absence of
direct evidence. A finding that adverse action closely followed
protected activity gives rise to a reasonable presumption that
the protected activity caused the adverse action.
However, if the adverse action is distant in time from the
protected activity, doubt arises as to whether the alleged
retaliator could have still been acting out of retaliatory
motives." Slip op. At 86-87 (citations omitted).
Editor s note: The Secretary characterized his prior
rulings as being that "periods of up to several months
between an incident of protected activity and adverse action were
short enough to give rise to an inference that the protected
activity was the likely cause of the adverse action." Slip
op. at 85 (citations omitted). It may be noted, however, that
the Secretary has considered a period of twelve months to be
sufficiently proximate to raise the inference, although at
eighteen months, the gap begins to militate against using
temporal proximity alone to raise an inference of causation.
See decisions cited in the Slip op. at 85-86.
XI.A.2.b.ii. Proximate timing of adverse action
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that a three or
four month gap between Complainant's protected activity
(complaint about number of hours schedulers worked) and his
discharge was sufficient to raise the inference of causation.
XI.A.2.b.ii. Sequence of events viewed in context
of events as a whole
In Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y
Oct. 6, 1992), the Secretary indicated that although a sequence
of events occurring over a relatively short time would normally
support an inference of causation, it is necessary to view the
events as a whole. Hence, she would not have drawn the inference
made by the ALJ that the fact that the complainant was terminated
shortly after making his environmental complaints known and
taking photographs of alleged environmental hazards that his
"protected activity may have played a role in his
dismissal." The Secretary declined to draw this inference
because the complainant had made his contact with the EPA known
earlier and had engaged in a stream of obscene invective
immediately prior to being asked to leave the property.
XI.A.2.b.ii. Timing of discipline
Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).
In 1986 petitioner Richard Couty was employed within the meaning
of section 5851 by Arkansas Power and Light Company (AP&L) as
a quality control inspector at a steam-electric nuclear
generating facility in Russellville, Arkansas. Petitioner was
discharged by AP&L, ostensibly on the ground of
unprofessional behavior, but he believed that he had been
discharged because he had engaged in activity protected by
Section 5851. He threatened to bring various safety and quality-
control complaints to the attention of the Nuclear Regulatory
Commission besides notifying his supervisors. The ALJ's
Recommended Decision and Order determined that the evidence did
not support an inference of retaliatory motivation on AP&L's
part and therefore, concluded that petitioner failed to establish
a prima facie case of retaliatory discharge under section
5851(a). In the alternative, the ALJ determined that even if it
could be found that petitioner had established a prima facie
case, AP&L, nevertheless, should prevail because petitioner
would have been discharged regardless of his having engaged in
protected activity. In the Secretary's Final Decision and Order
she adopted only the ALJ's finding that petitioner had not
established a prima facie case of retaliatory discharge and
dismissed the complaint. Petitioner sought review in the Eighth
Circuit pursuant to section 5851(c). Petitioner was discharged
roughly thirty days after he engaged in protected activity. That
temporal proximity was held sufficient as a matter of law to
establish the final required element in a prima facie case of
retaliatory discharge which is that the discharge followed the
protected activity so closely in time as to justify an inference
of retaliatory motive. See Keys v. Lutheran Family and
Children's Servs. of Missouri, 668 F.2d 356, 358 (8th Cir.
1981) (retaliatory discharge claim involving section 704(a) of
Title VII, 42 U.S.C. § 2000e-3(a)); Womack v. Munson,
619 F.2d 1292, 1296 & n.6 (8th Cir. 1980) (same), cert.
denied, 450 U.S. 979, 101 S. Ct. 1513 (1981). Accord Davis
v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986);
Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.
1985).
XI.A.2.b.ii. Complaint made after firing
In Bailey v. System Energy Resources, Inc., 89-ERA-
31, 32 (Sec'y July 16, 1993), the Complainants, junior decon
technicians, raised complaints about a change in their work
schedule that required them to assist in smearing and frisking
(decontamination procedures) of tools. One evening shortly
thereafter, Complainants were observed lying on the floor, and
later that evening the plant manager revoked their plant access
privileges, having concluded that they had been sleeping. The
next morning, Respondent's site director decided to fire the
Complainants. Later that day, one of the Complainants contacted
the Nuclear Regulatory Commission to inquire about decon
technicians smearing and frisking tools. Complainants did not
learn that they had been fired until after the contact with NRC.
Complainants contended that the alleged sleeping incident was an
excuse get rid of them because they were raising safety concerns.
The Secretary agreed with the ALJ that Complainants failed to
prove they were engaged in protected activity by making internal
complaints about safety matters (i.e., they did not raise, or
were not perceived as raising, internal safety complaints -- they
were complaining about schedule and duties). In addition, the
telephone call to NRC was made after Complainants had been denied
site clearance, and therefore the inference that protected
activity, much less the likely motive, for the adverse action
could not be raised. Finally, even if a prima facie case had
been established, the adverse action was motivated by a
legitimate, nondiscriminatory reason -- sleeping on the job.
XI.A.2.b.ii. Two months raises inference of causation
In Samodurov v. General Physics Corp., 89-ERA-20
(Sec'y Nov. 16, 1993), a period of two months was found to be
sufficiently brief to raise the inference of causation under the
circumstances of the case. [Complainant, however, failed to
establish other elements of prima facie case, such as
Respondent's knowledge of protected activity].
XI. A. 2. b. ii. Proximate timing of adverse
action
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), six months between the protected activity and the
Complainant's discharge established sufficient temporal proximity
to raise the inference of retaliatory motive.
XI.A.2.b.ii. Adverse action closely following protected
activity
Where the decision to transfer a complainant closely follows his
protected activity, an inference of causation is raised.
SeeScerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).
XI. A. 2. b. ii. Proximate timing of adverse action;
circumstantial evidence
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), sufficient temporal proximity of the
protected activity and the adverse action to raise the inference
of causation was found where about one year elapsed between the
time Complainant's supervisor learned of Complainant's safety
concerns regarding procedures and equipment used for tracking
valve testing, and where the Complainant's test certifications
were suspended about three weeks after she made internal
complaints about using non-approved criteria for certain testing.
XI.A.2.b.ii. Temporal proximity
Where an adverse action closely follows protected activity, the
inference of causation may be sufficiently established. See,
e.g., Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989);
Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985).
Conversely, where a significant period of time elapses between
the protected activity and the adverse action, the absence of a
causal connection between the protected activity and the adverse
action may be sufficiently established. Burrus v. United
Telephone co., of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.
19xx), cert. denied, 459 U.S. 1071 (1982) (three-year
interval established absence of causation); Shusterman v.
Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992) (four-
year interval between protected activity and discharge
establishes the absence of a causal connection in the absence of
credible evidence to the contrary).
XI.A.2.b.ii. Causation; temporal proximity
A causal connection between the protected activity and the
adverse employment action may be established by showing that the
employer was aware of the protected activity and that adverse
action followed closely thereafter. See Couty v. Dole,
886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldridge,
759 F.2d 80, 86 and n.6 (D.C. Cir. 1985); Burrus v. United
Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.),
cert. denied, 459 U.S. 1071 (1982). Larry v.
Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
XI.A.2.b.ii. Temporal proximity
Close temporal proximity may be legally sufficient to establish
the "causation" element of a prima facie case.
Conaway v. Valvoline Instant Oil Change, Inc., 91-
SWD-4 (Sec'y Jan. 5, 1993).
To the same effect: Helmstetter v. Pacific Gas &
Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993), slip op. at
9-10.
XI.A.2.b.ii. Temporal proximity
In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
likely motivation for the adverse action. Thus, where
Complainant brought concerns about the validity of certain
studies to management's attention in a series of meetings from
1987 through March 28, 1989, and Complainant was discharged
effective April 7, 1989, the short time between the protected
activities and the discharge was sufficient to raise the
inference that the protected activities likely motivated his
discharge. Abu-Hjeli v. Potomac Electric Power
Co., 89-WPC-1 (Sec'y Sept. 24, 1993).
XI.A.2.b.ii. Proximate timing
Where the complainant was terminated two days after his employer
learned that he had given a client a NRC telephone number, the
sequence of events occurring over a relative short time period
supported an inference of causation. Lederhaus v. Donald
Paschen & Midwest Inspection Service, Ltd., 91-ERA-13
(Sec'y Oct. 26, 1992), slip op. at 7.
XI. A. 2. b. ii. Proximate timing of adverse action
In Dillard v. Tennessee Valley Authority, 90-ERA-31
(Sec'y July 21, 1994), the Secretary noted that proximity in time
between the complainant's protected activities and the
respondent's adverse actions may be sufficient to raise the
inference of causation. In the instant proceeding, however, a
year and a half passed between the last protected activity and
the adverse action, which mitigated against a finding that
temporal proximity alone raised the inference of causation.
XI. A. 2. b. ii. Proximate timing of adverse action;
circumstantial evidence
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), sufficient temporal proximity of the
protected activity and the adverse action to raise the inference
of causation was found where about one year elapsed between the
time Complainant's supervisor learned of Complainant's safety
concerns regarding procedures and equipment used for tracking
valve testing, and where the Complainant's test certifications
were suspended about three weeks after she made internal
complaints about using non-approved criteria for certain testing.
XI.A.2.b.ii. Time lag militates against inference of
retaliation
In Morris v. The American Inspection Co., 92-ERA-5
(Sec'y Dec. 15, 1992), slip op. at 8, the Secretary concluded
that the time lag between the complainant's expressions of
concern about working with a co-worker whose practices allegedly
presented a safety hazard and the complainant's firing (March
1991 - July 1991), militated against an inference of retaliation
in response to the protected activity. The respondent had
promised never to assign the complainant to work with that co-
worker, and the co-worker had been fired in June 1991 for three
separate safety violations.
XI. A. 2. b. ii. Proximate timing of adverse action
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), six months between the protected activity and the
Complainant's discharge established sufficient temporal proximity
to raise the inference of retaliatory motive.
XI. A. 2. b. ii. Proximate timing of adverse
action
In Dillard v. Tennessee Valley Authority, 90-ERA-31
(Sec'y July 21, 1994), the Secretary noted that proximity in time
between the complainant's protected activities and the
respondent's adverse actions may be sufficient to raise the
inference of causation. In the instant proceeding, however, a
year and a half passed between the last protected activity and
the adverse action, which mitigated against a finding that
temporal proximity alone raised the inference of causation.
XI.A.2.b.ii. Temporal proximity between protected
activity and adverse action; six month gap is
sufficient proximity
In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
motivation for the adverse action. Where about six months passed
between a complainant's submission of employee suggestions and
the issuance of a disciplinary letter, the temporal proximity was
enough to raise an inference of discrimination and to establish a
prima facie case. See Goldstein v. Ebasco Constructors,
Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op. at 11-12,
appeal docketed, No. 92-4576 (5th Cir. June 1, 1992)
(causation established where seven or eight months elapsed
between protected activity and adverse action).
Helmstetter v. Pacific Gas & Electric Co., 86-
SWD-2 (Sec'y Sept. 9, 1992).
XI.A.2.b.ii. Two weeks
Where the adverse action occurred less than two weeks after the
Complainant engaged in protected activity, the inference could be
drawn that the protected activity was the reason for the adverse
action. Thompson v. Tennessee Valley Authority,
89-ERA-14 (Sec'y July 19, 1993).
XI.A.2.b.ii. Two months sufficient to raise
inference of causation
Where less than two months elapsed between the time the
complainant questioned his superiors about safety procedures and
his layoff, the temporal proximity between the protected activity
and the adverse action was sufficient to raise an inference of
causation.
Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 12.
XI A 2 b ii Ten-month lapse
A ten-month lapse between the protected activity and the adverse
action may be sufficient to raise an
inference for a prima facie case under a Part 24 whistleblower
complaint. See
Carson v.
Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995).
XI.A.2.b.ii. Eight months may be sufficient temporal
proximity
In Seda v. Wheat Ridge Sanitation District, 91-WPC-
1, 2 and 3 (Sec'y Sept. 13, 1994), the ALJ held that because
Complainants were laid off some eight months after their
protected activity, that adverse action "was not in close
proximity to the protected activity," citing Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
The Secretary, noting that this ruling did not affect the outcome
in this case, observed that in some circumstances an adverse
action following protected activity by eight months can give rise
to an inference of retaliation. Compare Goldstein v. Ebasco
Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op.
at 11-12, rev'd on other grounds sub nom Ebasco Constructors,
Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993) (seven
to eight months between last protected activity and adverse
actions), with Burrus v. United Tel. Co. of Kansas, 683
F.2d 339, 343 (10th Cir. 1982), cert. denied 459 U.S. 1071
(1982) (three year gap between protected activity and adverse
action too long to raise inference of retaliation).
XI.A.2.b.ii. Six month interval
Six months between an initial internal complaint and a job
transfer was found in Mandreger v. The Detroit Edison
Co., 88-ERA-17 (Sec'y Mar. 30, 1994) to constitute a
sufficient temporal nexus between protected activity and adverse
action to raise the inference of causation.
XI.A.2.b.ii. Temporal remoteness may refute causal
connection
Temporal remoteness of the protected activity to the adverse
employment action may refute a causal connection. Bassett
v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28,
1993) (Complainant's principal auditing work occurred in 1982 and
1983; the adverse employment action took place in 1985;
Complainant had performed no nuclear auditing work during the
year which preceded the evaluation).
XI.A.2.b.ii. Significant gap between protected activity
and adverse action
In determining if a prima facie case has been established,
temporal proximity between the protected activity and the adverse
action may be sufficient to support the inference that the
protected activity was the motivation for the adverse action.
Nichols v. Bechtel Constr., Inc., 87-ERA-44 (Sec'y Oct.
26, 1992), slip op. at 12. Where, however, a significant period
of time elapses between the time at which the respondent is aware
of the protected activity and the time of the adverse action, the
absence of a causal connection between the protected activity and
the adverse action may be sufficiently established.
Shusterman v. Ebasco Serv., Inc., 87-ERA-27 (Sec'y Jan. 6,
1992), slip op. at 8-9.
Thus, where the Chief Security Coordinator was aware of the
complainant's protected activity in May 1984, but no adverse
action was taken until October 1984, and considering that the
individual who initiated the adverse action, a modification
superintendent, was not at that time aware that the complainant
had engaged in protected activity, the evidence was insufficient
to raise the inference that protected activity was the likely
motive for the adverse action, and the complainant failed to
present a prima facie case. Young v. Philadelphia Electric
Company, 87-ERA-11, 36, 88-ERA-1 (Sec'y Dec. 18,
1992).
XI.A.2.b.ii. Significant lapse of time between
protected activity and adverse action
Where a significant period of time elapses between the time at
which the respondent is aware of or receives notice of the
protected activity and the time of the adverse action, the
absence of a causal connection between the protected activity and
the adverse action may be sufficiently established. Bassett
v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28,
1993) (time interval between November 1984 protected activity and
adverse action in August 1985 belied a causal link; nevertheless,
in Bassett, other temporarily close acts did
establish the prima facie case).
XI.A.2.b.ii. Proximate timing
The proximate timing of the conduct vis-a-vis the adverse action
may tend to support an inference of causation. Johnson v.
Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29,
1991) (noting that a supervisor's attitude toward and handling of
complainers supported the timing as evidence raising the
inference of causation).
XI.A.2.b.ii. Contact with EPA after termination
Where the complainant's involvement with the EPA occurred after
he was terminated, and his termination was for unsatisfactory
performance, the complainant failed to establish a prima facie
case.
XI.A.2.b.ii. and iii. Circumstances supporting
inference
Temporal proximity between the protected activity and the adverse
employment action is legally sufficient to establish the
"causation" element of a prima facie case. Additional
evidence may support the inference, such as the respondent's
barring of inspectors, chastising the complainant, and direct
evidence of retaliatory motive.
Williams v. TIW Fabrication & Machining, Inc.,
88-SWD-3 (Sec'y June 24, 1992).
In Devine v. Buncombe County Dept. of Engineering
Services, 87-SWD-1 (ALJ June 19, 1987), aff'd
(Sec'y June 28, 1990), a pay restructuring plan was not
mechanically applied only in regard to the Complainant and a co-
worker who was in the same step and grade as the Complainant
prior to the restructuring but who got an extra step because of
length of service and good work. This fact coupled with the fact
that the Complainant had been listed as a witness in an SWD
proceeding involving another employee, if considered alone, would
have permitted an inference of retaliatory intent. Other
circumstances, however, militated against that inference. For
example, another listed witness in the prior proceeding was
appointed supervisor, with a substantial increase in pay.
Further, the record as a whole indicated that the reason for the
disparate treatment for the employee formerly at the
Complainant's grade and step was the supervisor's feeling that he
was a meritorious employee rather than animus toward the
Complainant.
[Nuclear & Environmental Whistleblower Digest XI A 2 b iii] CAUSATION; NOTIFICATION OF "AT RISK" STATUS PRIOR TO DISCHARGE BUT BEFORE PROTECTED ACTIVITY
In Tennessee Valley Authority v. U.S. Secretary of Labor, 2003 WL 932433 (6th Cir. Mar. 6, 2003) (unpublished) (case below Overall v. Tennessee Valley Authority, ARB Nos. 98 111, 98 128, ALJ No. 1997 ERA 53), Respondent asserted on appeal that DOL had erred in finding a causal connection between Complainant's protected activity and the adverse employment action because Respondent had provided notification to Complainant of his potential at risk status prior to the protected activity. The court upheld DOL's rejection of this assertion because the notification only stated that Complainant "may" be transferred, which was plainly not indicative of a final decision. The court found that "DOL reasonably concluded from substantial evidence that TVA made the decision to remove [Complainant] ... only after [engaged in the protected activity].
[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.
TEMPORAL PROXIMITY; ONE YEAR TOO DISTANT; INTERVENING
LEGITIMATE REASON FOR ADVERSE EMPLOYMENT ACTION
[N/E Digest XI A 2 b ii and iii]
Where nearly a year had elapsed between Complainant's filing of several reports under a
program encouraged by Respondent for employees to identify areas of concern, and the decision
to terminate Complainant's employment, the evidence was insufficient to establish that the
termination decision was inspired by the protected activity.
In addition, the Board indicated that the existence of an intervening, legitimate reason for
terminating Complainant's employment -- his attendance at a conference contrary to express
instruction (his second violation of company policy in this respect) -- was the more important
factor.
Evans v. Washington Public Power Supply
System, 95-ERA-52 (ARB July 30, 1996), citing Williams v. Southern
Coaches,
Inc., 94-STA-44 (Sec'y Sept. 11, 1995) (legitimate reason for termination occurring after
protected activity may negate any temporal inference of causation).
XI A 2 b iii Error to consider respondent's proffered
reasons for termination at prima facie case
stage
In Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y
Aug. 4, 1995), the Secretary held that it was error for the ALJ
to consider the Respondent's proffered reasons for terminating
the employment of the Complainant in determining whether a prima
facie case had been established. The Secretary wrote: "An
employer's reason for the adverse action goes not to the causal
element of a prima facie case but to the ultimate question
of whether Respondent retaliated against Complainant because he
engaged in protected activity." Slip op. at 8-9 n. 5.
XI A 2 b iii Draft memoranda as evidence of
motive
In Jenkins v. U.S. Environmental Protection Agency,
92-CAA-6 (Sec'y May 18, 1994), draft disciplinary memoranda,
which addressed Complainant's protected activity, but which were
never transmitted to her or discussed with her, were found by the
Secretary to suggest Respondent's displeasure with her
whistleblowing. The Secretary found that the exhibits documented
an ongoing, unsuccessful effort by Respondent to find a
legitimate reason for disciplining Complainant when the real
reason appears to have been her whistleblowing. This evidence
showed causation for purposes of Complainant's prima facie case.
XI.A.2.b.iii. Evidence tending to demonstrate
causation
The Sixth Circuit in The Detroit Edison Co. v. Secretary,
United States Dept. of Labor, No. 91-3737, slip op. (6th
Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992
U.S. App. LEXIS 8280), affirmed the Secretary's finding that the
Complainant had met here burden in the prima facie case of
establishing a causal link. The evidence tended to demonstrate
(1) that the Complainant had performed very well in a temporary
promotion and had been promised a permanent promotion, (2) that
her relationship with a superior began to deteriorate shortly
after she made contacts with an NRC inspector, (3) that the
decision to rescind her promotion was made two weeks after a
superior had overhead the NRC inspector disclose the
Complainant's whistleblowing, and (4) that the decision to
rescind the promotion was made while the Complainant's immediate
supervisor was on vacation, and was implemented over that
supervisor's vigorous objection.
XI.A.2.b.iii. Timing and recommendation of co-
worker
In Passaic Valley Sewerage Commissioners v. United States
Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993)
(available at 1993 U.S. App. LEXIS 7906), the Complainant (the
Respondent's Chief of Laboratory and Stream Pollution Control)
was highly critical of the Respondent's user charge verification
system, and prepared several memoranda to Respondent's
commissioners alleging that the system vioated the Clean Air Act.
The commissioners conducted a hearing in which they heard the
Complainant's position, but which resulted in their finding the
position to be without merit. The Complainant's had had a
volatile relationship with the Chief of Industrial Waste from the
outset, and the criticism of the system caused that person to
recommended termination of the Complainant's employment because
his behavior jeoparidzed the Respondent's credibility with the
its customers. A superior arranged for mediation between the
two Chiefs by two managers. About six months later, those
managers recommended to the Commissioners elimination of the
Complainant's position based on a corporate reorganization. The
Complainant was terminated, purportedly based strictly on fiscal
needs and his lack of seniority. Evidence in the record,
however, supported a finding that the Complainant's apparent lack
of interpersonal skills contributed to his selection for
termination.
The court found that substantial evidence supported the
Secretary's conclusion that the Complainant's complaint directly
prompted his termination, and was the dominant reason for the
employment decision, even though there may have been other
reasons that played a role -- the record showed that the
Complainant's complaints jeopardized the entire user charge
system and compromized customer credibility. The Chief of
Industrial Waste directly recommended a termination on this
basis, and the Complainant's termination was only six months
later.
XI.A.2.b.iii. Evidence of pattern of retaliation
In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ
Apr. 26, 1989), aff'd (Sec'y Nov. 24, 1992), the
administrative law judge found that only those events occurring
within thirty days of the filing of the complaint were actionable
under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all
relevant events as evidence of a possible pattern of
discrimination irrespective of their time of occurrence.
XI.A.2.b.iii. Timing and recommendation of co-
worker
In Passaic Valley Sewerage Commissioners v. United States
Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993)
(available at 1993 U.S. App. LEXIS 7906), the Complainant (the
Respondent's Chief of Laboratory and Stream Pollution Control)
was highly critical of the Respondent's user charge verification
system, and prepared several memoranda to Respondent's
commissioners alleging that the system vioated the Clean Air Act.
The commissioners conducted a hearing in which they heard the
Complainant's position, but which resulted in their finding the
position to be without merit. The Complainant's had had a
volatile relationship with the Chief of Industrial Waste from the
outset, and the criticism of the system caused that person to
recommended termination of the Complainant's employment because
his behavior jeoparidzed the Respondent's credibility with the
its customers. A superior arranged for mediation between the
two Chiefs by two managers. About six months later, those
managers recommended to the Commissioners elimination of the
Complainant's position based on a corporate reorganization. The
Complainant was terminated, purportedly based strictly on fiscal
needs and his lack of seniority. Evidence in the record,
however, supported a finding that the Complainant's apparent lack
of interpersonal skills contributed to his selection for
termination.
The court found that substantial evidence supported the
Secretary's conclusion that the Complainant's complaint directly
prompted his termination, and was the dominant reason for the
employment decision, even though there may have been other
reasons that played a role -- the record showed that the
Complainant's complaints jeopardized the entire user charge
system and compromized customer credibility. The Chief of
Industrial Waste directly recommended a termination on this
basis, and the Complainant's termination was only six months
later.
XI A 2 b iii Consideration of factors other than
proximity in time
In McDonald v. University of Missouri, 90-ERA-59
(Sec'y Mar. 21, 1995), the Secretary
determined that the proximity in time between the protected
activity and the adverse employment action
was sufficient to raise an inference of causation for a prima
facie case in a case involved the discharge
of a Postdoctoral Associate who had complained about poor lab
procedures by graduate students. The
Secretary also considered additional evidence in this regard.
Specifically, the divisional director testified
that it was not the ERA complaints themselves that led to the
Complainant's discharge, but rather the
way the Complainant handled the complaints; the head of the lab
admitted that the Complainant's safety
concerns played a role in disrupting the lab; another professor
testified that she knew about problems in
the lab Complainant was employed before the Complainant even
arrived; less than one month before
Complainant reported violations, the lab head had written a
letter of recommendation that contradicted
the later assertion that the Complainant's handling of complaints
disrupted the lab.
XI.A.2.b.iii. Inference of causation; prima facie
case
The fact that the complainant's supervisor told the complainant
at a meeting to discuss the complainant's conduct before a vendor
that making more suggestions such as one the complainant had made
to treat used batteries as hazardous waste would not further his
career supported an inference of discrimination.
Helmstetter v. Pacific Gas & Electric Co., 86-
SWD-2 (Sec'y Sept. 9, 1992).
XI.A.2.b.iii. Secretary took into consideration in prima
facie case circumstances that another person
who engaged in protected activity was
promoted and that Complainant's testimony
before the NRC was confidential
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993), the fact that at least one of the persons
who engaged in protected activity together with Complainant was
selected to become a supervisor during a company reorganization
was considered by the Secretary in determining whether the
inference of intentional discrimination element of a prima facie
case was raised. Complainant was contending that he was denied a
promotion in the reorganization because of his participation in
an audit and testimony before the NRC the year before.
The Secretary also took into consideration the number of persons
who testified before the NRC (about 40), that the testimony was
completely confidential, and that the person who made the
decision not to promote Complainant credibly testified that he
was not aware of the substance of Complainant's testimony before
the NRC.
[Editor's note: Secretary ultimately found prima facie case
established for another reason]
XI.A.2.b.iii. Evidence of pattern of retaliation
In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ
Nov. 24, 1992), aff'd (Sec'y Nov. 24, 1992), the
administrative law judge found that only those events occurring
within thirty days of the filing of the complaint were actionable
under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all
relevant events as evidence of a possible pattern of
discrimination irrespective of their time of occurrence.
In Hick v. Western Concrete Structures, Inc., 82-
ERA-11 (Sec'y June 5, 1984), the Secretary found that although
there was a close temporal connection between Complainant's
protected activity of contacting the Arizona Public Service
Agency (APS) and his discharge, Complainant failed to met the
element of the prima facie case of a causal link between his
protected activity and his termination, and that the burden did
not shift to Respondent to articulate a legitimate,
nondiscriminatory reason for the firing.
This conclusion was based on evidence that there was no climate
of discouraging contact with APS; that the person about whom
Complainant had complained to APS, the production superintendent
(on the ground that he was "production oriented" and
going "to cut corners any way he could") had
recommended Complainant for a position; Complainant's successor
was not pressured in regard the production superintended or told
not to work freely with APS; that Complainant's new supervisor
wanted stricter quality control which he felt he could not get
with Complainant and specifically with Complainant's inadequate
training.
XI.A.2.b.iii. Circumstances in which inference is not
raised; employer simply failed to follow
through
Where the complainant testified that he had requested that he be
provided with a copy of the Respondent's Operating and Emergency
Procedures Manual, but there was no evidence that either of the
supervisors he had talked to had reacted negatively to his
request, and it was uncontested that management and other
employees possessed copies of the manual, his protected activity
alone was insufficient to raise an inference that his subsequent
firing was retaliatory. At worst, the supervisors simply did not
follow through and provide the complainant with a manual.
Morris v. The American Inspection Co., 92-ERA-5
(Sec'y Dec. 15, 1992), slip op. at 7.
In Muino v. Florida Power & Light Co., ARB Nos. 06-092 and 06-143, ALJ Nos. 2006-ERA-2 and 8 (ARB Apr. 2, 2008), the Complainant alleged that the Respondent violated the ERA when the Complainant applied for work with one of the Respondent's contractors, and the Respondent informed the contractor that the Complainant was not eligible for rehire, resulting in the Complainant's interview being cancelled. The ineligibility for rehire had been based on an HR employee's review of the Complainant's personnel file (the Complainant having worked for the Respondent 10 years earlier), which had been passed on to other of the Respondent's employees who had been asked by contractors about the Complainant's eligibility.
The ALJ had granted summary decision on the ground that the employees who reported on the Complainant's ineligibility had not been aware of the Complainant's whistleblowing activity. On appeal, the ARB agreed with the ALJ that the Complainant had provided only speculation that his personnel file must have disclosed his earlier whistleblower activities. The Board stated that "allegations, bare denials, or speculative theories do not create a genuine issue of material fact that would entitle the non-moving party to an evidentiary hearing. At summary decision, [the Complainant] must produce affidavits or other admissible evidence that he suffered employment discrimination because of his safety complaints." USDOL/OALJ Reporter at 9 (footnote omitted).
XI.A.2.c. Respondent must be aware of
protected activity
Where the complainant, together with seven other employees, was
fired upon presenting a list of grievances (which included one
item relating to safety) to a supervisor, and the supervisor
immediately fired the group without looking at the list, this
incident standing alone fails to establish a prima facie of
retaliatory discharge because knowledge of a protected activity
is an essential element of the prima facie case. Morris v.
The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15,
1992), slip op. at 6-7.
[Nuclear and Environmental Whistleblower Digest XI A 2 c] CAUSATION; LACK OF KNOWLEDGE OF RESPONDENT OF COMPLAINANT'S PROTECTED ACTIVITY
In Knox v. United States Dept. of the Interior, ARB No. 06-089, ALJ No. 2001-CAA-3, PDF the matter was on remand to the ARB from the Fourth Circuit. Knox v. United States Dep't of the Interior, 434 F.3d 721 (4th Cir. 2006). The ARB found that that the Fourth Circuit believed that the ARB's protected activity standard under the CAA only required that the Complainant in the case reasonably believed that asbestos was escaping into the outside, ambient air, and that the ARB had misapplied that standard. The Board, however, clarified its standard as requiring whistleblower to take some action on that belief, and indicated that there may be a conflict between the ARB's standard and the standard enunciated by the Fourth Circuit:
The ARB's protected activity standard for the CAA is . . .that an employee engages in protected activity under the CAA when he or she expresses a concern, and reasonably believes, that the employer has either violated an Environmental Protection Agency (EPA) regulation implementing the CAA or has emitted or might emit, at a risk to the general public, potentially hazardous materials into the ambient air. If the Fourth Circuit's standard for CAA-protected activity, however, requires only that the whistleblower reasonably believe that an employer is violating EPA regulations or is emitting, or is about to emit, potentially hazardous materials into the ambient air, Knox engaged in CAA-protected activity.
USDOL/OALJ Reporter at 5 (footnote omitted). The ARB indicated, however, that regardless of the standard for protected activity, the Complainant still did not prevail in the instant case because he admitted in testimony that he had not expressed a concern to the Respondent's management about asbestos escaping from a Job Corp. facility. Since the Respondent was not aware of the Complainant's protected activity, it could not have retaliated against him because of protected activity.
[Nuclear and Environmental Whistleblower Digest XI A 2 c]
CAUSATION; KNOWLEDGE OF PERSONS WHO MADE EMPLOYMENT DECISION
The ARB affirmed the ALJ's finding that the Complainant failed to prove that the persons who had input into the decision not to offer him a principle auditor position following a corporate reorganization were aware of the Complainant's safety activities in earlier employment. The position to which the Complainant applied would have been a promotion; he did not apply for his current auditor position and was terminated when not selected for the applied for position in the reorganized company. The Complainant on appeal argued that a finding that a newly hired manager made the decision to terminate him without contact from anyone in upper management was preposterous and that he had been terminated as part of a broad conspiracy to cover up safety issues he had raised. The ARB, however, found that the Complainant's theory was barely even rank speculation and that without evidence that the managers who declined to offer him the position he applied for knew about the alleged protected activity, his claim of retaliation was absolutely precluded. Shirani v. Comed/Exelon Corp., ARB No. 03-100, ALJ No. 2002-ERA-28 (ARB Sept. 30, 2005).
[Nuclear and Environmental Whistleblower Digest XI A 2 c]
SUMMARY DECISION; MERE SPECULATION INADEQUATE TO DEFEND AGAINST MOTION SUPPORTED BY AFFIDAVITS THAT SHOW A FAILURE OF PROOF ON ESSENTIAL ELEMENT OF CASE; REFUSAL TO HIRE, LACK OF KNOWLEDGE BY HIRING OFFICIALS OF PROTECTED ACTIVITY
In Hasan v. Enercon Services, Inc., ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB May 18, 2005), the ARB affirmed the ALJ's dismissal on summary judgment where the Complainant had failed to set forth specific facts on an issue upon which he would bear the ultimate burden of proof at trial in response to a motion for summary judgment supported by affidavits from managers swearing that they had no knowledge of the Complainant's previous whistleblower activities when they made the decision not to hire him. In other words, the Respondent was entitled to summary decision where it established a complete failure of the Complainant's proof concerning an essential element of the case. The Complainant's only response to the motion had been speculation that the Respondent had not hired him because "some background check" must have disclosed his earlier whistleblower activities or that the affiants must have committed perjury.
To the same effect Hasan v. Southern Co., ARB No. 04-040, ALJ No. 2003-ERA-32 (ARB Mar. 29, 2005).
[Nuclear & Environmental Whistleblower Digest XI A 2 c]
IMPUTED KNOWLEDGE OF PROTECTED ACTIVITY; PERSON WITH KNOWLEDGE OF PROTECTED ACTIVITY HAD SUBSTANTIAL INPUT INTO DECISION TO FIRE COMPLAINANT
Where Complainant's supervisor had knowledge of Complainant's protected activity and had substantial input into the decision to fire Complainant, even though the vice president who actually fired Complainant did not know about the protected activity, such knowledge could be imputed to Respondent. Kester v. Carolina Power & Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003).
[Nuclear & Environmental Whistleblower Digest XI A 2 c]
RESPONDENT'S KNOWLEDGE; COMPLAINANT ERRONEOUSLY BLAMED FOR
FILING SAFETY COMPLAINT
In Evans v. Baby Tenda, 2001 CAA 4 (ALJ
Sept. 30, 2002), Respondent terminated Complainant's employment not only for her protected
actions, but in part on the mistaken belief that she had also taken actions that actually had
been taken by another employee. The ALJ held that:
I am of the opinion that the CAA whistleblower protections
must extend to persons erroneously believed to have filed complaints. If an
employer is free to fire anyone other than the complainant [who actually
engaged in the protected activity], then that employer is free to eviscerate the
CAA. In fact, taking adverse actions against coworkers, whether intentional or
unintentional, may be more effective than retaliating only against the
complainant because it encourages fellow employees to turn on the complainant
to protect their own jobs. Whistleblower statutes are premised on the fact that
some employees may hesitate to complain of safety and health issues for fear
of retaliation. Even greater is that fear when the employee believes that
retaliation will follow if any employee complains. The protection of the CAA must
shield employees from both intentional or unintentional adverse actions, because
in either case, such retaliation chills the interest of employees to exercise their
rights. As such, the Respondent acted adversely to the Complainant with the
clear intent of chilling the exercise of her rights under the CAA.
The ALJ cited in this regard, Reich v. Cambridgeport Air Systems, Inc., 26 F.3d 1187,
1188 1189 (1st Cir. 1994). (section 11(c) OSHA case in which coworker was fired for being a
friend of the worker who filed a complaint with OSHA).
[Nuclear & Environmental Digest XI A 2 c]
RETALIATORY MOTIVE; EMPLOYER NOT REQUIRED TO READ
COMPLAINANT'S MIND
In Macktal v. U.S. Dept. of
Labor, No. 98-60123 (5th Cir. Apr. 13,
1999) (case below 1986-ERA-23), Complainant responded to a counseling report for excessive
absenteeism by submitting to his employer a handwritten memorandum in which he objected to
the counseling report and stated that his "plan of action" was to file a
non-compliance complaint with the NRC concerning the safe operation of the facility at which he
worked. He also stated: "In a[n] effort to preserve my health and avoid any further
harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these
matters." A few hours later, Complainant's employment was terminated.
The Fifth Circuit observed that a complainant must show that the evidence is sufficient to
permit an inference that the protected activity was the likely reason for the adverse action, and
agreed with the ARB's observation that "[i]t would have required considerable mental
gymnastics on the part of Brown & Root managers to recognize that, when Macktal said he
wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did
not require him to violate NRC procedures." Macktal v. U.S. Dept. of
Labor, No. 98-60123, quoting Macktal v.
Brown & Root, Inc., 1986-ERA-23,
slip op. at 5 (Sec'y Dec. Jan. 6, 1998). The court also agreed with the ARB's finding
that"[w]e agree with the ALJ that a reasonable person could only interpret Macktal's
request as a resignation and could not be held responsible for failure to intuit what Macktal now
claims was on his mind." Id., quoting
Macktal v. Brown & Root, Inc.,
1986-ERA-23, slip op. at 5-6 (Sec'y Dec. Jan. 6, 1998).
See also Valerio v. Putnam Associates,
Inc., No. 98-1399 (1st Cir. Apr.
9, 1999), a Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3),
decision, relying in part on Clean Harbors Environ.
Serv., Inc. v. Herman,
146 F.3d 12 (1st Cir. 1998), a STAA whistleblower decision. In
Valerio the court observed that "not all abstract grumblings will suffice to
constitute the filing of a complaint with one's employer." The court wrote that
"written comments and criticisms made to an employer may not always amount to filed
complaints [under the FLSA]." Thus, the court decided that, like the panel in Clean
Harbors under the STAA, "we have little choice but to proceed on a case-by-case
basis, addressing as a matter of factual analysis whether the internal communications to the
employer were sufficient to amount to the 'filing of any complaint' within the statutory
definition."
[Nuclear & Environmental Digest XI A 2 c]
RESPONDENT'S KNOWLEDGE; ASSERTION THAT RESPONDENT DID NOT
KNOW COMPLAINANT WAS RAISING AN ENVIRONMENTAL CONCERN AS A
COMPONENT OF THE SAFETY COMPLAINT
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for
destroying military chemical agents including nerve gas, Respondent argued that its managers
had not perceived Complainant's concerns as relating to the environment, but rather to OSHA
workplace safety rules and Army regulations, and therefore Respondent could not be made liable
under the environmental whistleblower statutes. The ARB found this argument erroneous both
in regard to the law and the facts. The ARB found in one instance that the Army regulation at
issue dealt with environmental concerns outside the facility, and therefore the manager had to
have known that Complainant's citation of the regulation related to the general environment. In
regard to Complainant's concern about a hydrogen leak, the ARB found it
"preposterous" to assert that the managers would not comprehend the potential for a
release of toxic chemicals into the general environment. Moreover, the ARB held that
"legally ... the environmental acts do not require that a complainant articulate each statute
or regulation that potentially could be violated because of a defect or safety issue about which he
complains." Slip op. at 15.
[N/E Digest XI A 2 c]
[N/E Digest XI B 2 d viii]
LEGITIMATE NON-DISCRIMINATORY REASON FOR TERMINATION FROM
EMPLOYMENT; EMPLOYEE'S BEHAVIOR TOWARD SUPERVISORS AND
CO-WORKERS; LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY SUPERVISOR
WHO MADE TERMINATION DECISION
In Adjiri v. Emory
University, 97-ERA-36 (ARB July 14, 1998), Complainant was found to have
failed to carry her burden of persuasion of unlawful discrimination where Respondent presented
convincing evidence that it had legitimate, nondiscriminatory reasons for terminating
Complainant's employment -- including insubordination, lack of co-operation with co-workers,
and job abandonment. Moreover, Complainant failed to present any evidence to establish a link
between her purported protected activity and her discharge. The ARB noted that the official who
fired Complainant was not even aware of Complainant's safety complaints, and that the ALJ had
accorded the pro se Complainant considerable latitude in presenting her case.
[N/E Digest XI A 2 c]
CONTRIBUTING CAUSE; MERELY BEING ON NOTICE OF COMPLAINANT'S
OBJECTIONS TO CERTAIN WORK INSUFFICIENT TO ESTABLISH RETALIATORY
MOTIVE
"Under the ERA, 'a determination that a violation has occurred may only be made if
the complainant has demonstrated that protected behavior or conduct was a contributing factor' in
the adverse action taken against the complainant. 63 Fed Reg. 6614, 6623 (Feb. 9, 1998), to be
codified at 29 C.F.R. §24.7(b)." Dobreuenaski v. Associated Universities,
Inc., 96-ERA-44 @ 10-11 (ARB June 18, 1998). In
Dobreuenaski, Complainant had refused to enter the basement of a building
where a wastewater transfer was scheduled to take place to assist turning two or three valves.
Despite the explanation of the safety of the assigment by a health physicist and the offer of a
respirator, Complainant refused the assignment. The building had been the subject of safety
complaints by Complainant. The next day, Complainant was issued a verbal warning for the
work refusal. The day after the warning, a meeting was scheduled to discuss clean-up and
decontamination activities of the building's basement. Complainant refused to participate in
either the planning or execution of any such activities.
The ALJ concluded that Complainant's demotion was unlawful because, although
Employer did not know about Complainant's reluctance to enter the basement on the day of the
wastewater transfer, it did on the day of the meeting to plan clean-up and decontamination.
The ARB found that the ALJ correctly found that the work refusals had been major
reasons for the demotion, but that the ALJ erred in holding that the second assignment had been
made as part of a plan to downgrade Complainant for engaging in protected activities. The ARB
found that Complainant had not established by a preponderance of the evidence that
Respondent's actions were retaliatory, pointing to evidence that Respondent had diligently
attempted to assuage Complainant's concerns only to be rebuffed. The ARB concluded that the
evidence showed that Respondent's decision to demote Complainant was based solely on
Complainant's work refusal, and pointed to evidence that Respondent did not fire Complainant
outright as it could have under the collective bargaining agreement, but conscientiously
attempted to ally his concerns and to reassign him so that he would not have to do work he
rejected. The ARB also observed that Respondent made timely and thorough investigations of
Complainant's formal safety complaints. Finally, the ARB found that the ALJ's analysis was
based on the faulty assumption that Complainant's safety concerns permitted him to reject
summarily the basement cleaning assignment, citing decisions to the effect that "Although
a work refusal may be protected under the ERA if the complainant has a good faith, reasonable
belief that working conditions are unsafe or unhealthful, it loses its protection after the perceived
hazard has been investigated by responsible management officials and, if found safe, is
adequately explained to the employee." Id. at 12 (citations omitted).
KNOWLEDGE REQUIREMENT; HIGH LEVEL SUPERVISOR'S KNOWLEDGE OF
PAPERWORK
[N/E Digest XI A 2 c]
In Mosley v. Carolina Power & Light
Co., 94-ERA-23 (ARB Aug. 23, 1996), the evidence failed to show that the
manager of the nuclear power plant at which Complainant was working as a contract employee
was aware of complaints by Complainant to contract foremen about paperwork or plant
violations. Although the manager was responsible for implementing the modification work done
by the contract, and he met daily with contract personnel about scheduling issues, specific
workers and job assignments were not discussed. Questions about paperwork were addressed to
contract foremen; the manager did not work at the level were he became aware of questions
about paperwork.
The Board rejected Complainant's assertion that knowledge of protected activity could be
imputed to the manager without proof. Although knowledge can be shown by circumstantial
evidence, the Board stated, that evidence must show that an employee of the respondent with
authority to take the complained of action, or an employee with substantial input in that decision,
had knowledge.
KNOWLEDGE REQUIREMENT; DECISION TO TAKE ADVERSE ACTION BEFORE
GAINING KNOWLEDGE OF PROTECTED ACTIVITY [N/E Digest XI A 2 c]
Where an employer makes a decision to take adverse employment
action against an employee prior to learning of the employee s
protected activity, the employee s discrimination complaint is
"doomed." See Varnadore v. Oak Ridge National
Laboratory, 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26,
1996) (citing Hasan v. Reich, No. 92-5170 (5th Cir. May 4,
1993) (unpublished decision; see 1 F.3d 1136); Batts v.
NLT Corp., 844 F.2d 331, 334 (6th Cir. 1988)).
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.
XI A 2 c Respondents' awareness of internal
complaint
In Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y
Aug. 4, 1995), the ALJ focused on the Complainant's contact with
a state environmental agency as the only protected activity in
the case, and overlooked the Complainant's internal complaints to
management. Thus, when the ALJ found that the proof was
inadequate to establish that management was aware of the
Complainant's contact with the state agency, he erroneously
concluded that the Respondent was not aware of any protected
activity.
XI A 2 c RESPONDENT'S AWARENESS OF PROTECTED ACTIVITY
In Webb v. Carolina
Power & Light Co.,
93-ERA-42 (Sec'y July 14, 1995), the ALJ granted summary decision
based in part on his finding that the Complainants failed to
establish that the Respondent was aware of his protected
activity. Specifically, the ALJ concluded that Complainant's
allegation of Respondent's knowledge was based on assumptions and
speculation. The Secretary noted that a complainant may make the
required showing of a respondent's knowledge "either by
direct or by circumstantial evidence." Samodurov v.
General Physics Corp., 1989-ERA-20, slip op. at 11
(Sec'y Nov. 16, 1993). On the basis of Complainant's affidavits
and deposition submitted in support of and in opposition to the
motion, the Secretary found that there was a genuine issue of
material fact concerning this issue.
XI A 2 c Managers who effected complainant's discharge
must have had knowledge of protected
activities
In Scott v. Alyeska Pipeline Service Co., 92-TSC-2
(Sec'y July 25, 1995), the Respondent had employed an
investigative agency to conduct surveillance to determine the
source of leaks of its documents. Only a very limited number of
persons were aware of the investigation. Where a management
committee determined that the Complainant should be fired based
exclusively on the Complainant's past poor performance and no
discussion of the investigation, and none these managers had any
knowledge of the investigation, the Secretary adopted the ALJ's
finding that the Complainant had failed to establish the
essential element of his complaint that the managers who effected
his discharge had knowledge of his protected activities.
The Respondent's president and CEO was present and had knowledge
of the investigation and that the Complainant had been identified
as a probable source of the leaks. Nonetheless, the Secretary
agreed with the ALJ that this officer merely ratified the
recommendation of the management committee.
Further, even assuming the CEO's knowledge of Complainant's
protected activity was a factor in the discharge, the record was
found to support a finding that the Complainant would have been
fired even if he had not engaged in protected activity.
Complainant had a lengthy record of persistent disruptive,
uncooperative behavior, poor performance, and refusal to perform
assigned tasks. He had been disciplined several times, and
warned that further misconduct could lead to discharge. When he
committed those additional acts, the Respondent followed through
on the warnings.
XI.A.2.c. Knowledge inferred from record as a whole
Knowledge of protected activity may be inferred from the record
as a whole. Cf. Coral Gables Convalescent Home, Inc., 234
N.L.R.B. 1198 (1978).
Varnadore v. Oak Ridge National Laboratory, 92-CAA-
2, 5 and 93-CAA-1 (ALJ June 7, 1993) ("Under the
circumstances, Respondent cannot insulate itself from the
consequence of its actions with layers of bureaucratic
deniability." Slip op. at 65.).
XI.A.2.c. Showing of knowledge by circumstantial
evidence; must link knowledge to person with
authority to take adverse action
Although knowledge of the protected activity can be shown by
circumstantial evidence, that evidence must show that an employee
of the respondent with authority to take the complained of
action, or an employee with substantial input in that decision,
had knowledge of the protected activity.
In Atchinson v. Brown & Root, Inc., 82-ERA-9 (Sec'y
June 10, 1983) and Frazier v. Merit Systems Protection
Board, 672 F.2d 150 (D.C. Cir. 1982), it was held that where
managerial or supervisory authority is delegated, the official
with ultimate responsibility who merely ratifies his
subordinates' decisions cannot insulate a respondent from
liability by claiming "bureaucratic 'ignorance'." 672
F.2d at 166. Those cases do not hold that knowledge can be
imputed to a deciding official who has not delegated decision
making authority or is not simply adopting the recommendation of
a subordinate who did have knowledge.
Bartlik v. Tennessee Valley Authority, 88-ERA-15
(Sec'y June 24, 1992), slip op. at 4 n.1.
XI.A.2.c. Respondent's awareness of protected
activities
Where the record established that the Complainant was fired for a
specific instance of insubordination, and there was nothing in
the record to support an inference that the person who did the
firing knew anything about the Complainant's protected
activities, the Complainant failed to establish a prima facie
case, and his complaint was dismissed.
The Secretary stated:
Although whistleblowers are protected from retaliation
for blowing the whistle, the fact that any employee may have
blown the whistle does not afford him protection from being
disciplined for reasons other than his whistleblowing
activities nor does it given such an employee carte blanche
to ignore the usual obligations involved in an employer-
employee relationship. Dunham v. Brock, 794 F.2d
1037 (5th Cir. 1986). As the court found in Dunham:
"[a]n otherwise protected 'provoked employee' is not
automatically absolved from abusing his status and
overstepping the defensible bounds of conduct." 794
F.2d at 1041 (citations omitted).
Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y
July 26, 1988), slip op. at 8-9.
XI.A.2.c. Respondent's awareness
In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y
Aug. 1, 1993), Complainant failed to establish as part of his
prima facie case that the persons who participated in the
decision to fire him knew that he had threatened an environmental
suit. Although members of Respondent's security department were
aware that Complainant threatened to file a law suit, the record
did not indicate that they knew it was an environmental or
citizens suit, or that they shared their information with any of
the managers involved in the discharge. The testimony of those
managers was convincing that they had no knowledge that
Complainant had environmental concerns or that he intended to sue
Respondent.
XI.A.2.c. Respondent must have been aware of
protected activity
In Hancock v. Nuclear Assurance Corp., 91-ERA-33
(Sec'y Nov. 2, 1992), slip op. at 3-5, the complainant failed to
establish a prima facie case of retaliatory discharge where she
failed to present credible evidence showing that the respondent
was aware of her protected activity at the time of retaliation.
In Hancock, the complainant had reported to the
F.B.I. that she suspected a co-worker was a spy, but the only
evidence that the respondent knew of her F.B.I. complaint at the
time of her termination was an affidavit of her husband, which
was found not to be credible by the ALJ. In addition, the
testimony of the four employees involved in the complainant's
termination, the two F.B.I. agents involved with her report, and
the complainant's own testimony supported a conclusion that the
respondent was not aware of the complaint at the time of
discharge.
XI.A.2.c. Suspicion of complainant
A manager's suspicions that the complainant filed complaints with
government agencies may be sufficient to show respondent's
knowledge. SeePillow v. Bechtel Construction,
Inc., 87-ERA-311 (Sec'y July 19, 1993), citing
Williams v. TIW Fabrication Machining, Inc., 88-SWD-3 (Sec'y
June 234, 1992), slip op. at 6.
XI.A.2.c. Respondent's awareness of protected activity
In Hassell v. Industrial Contractors, Inc., 86-CAA-
7 (ALJ Mar. 30, 1987), aff'd, (Sec'y Feb. 13, 1989), the
Complainant failed to establish a prima facie case where he did
not establish that the Respondent had knowledge of his protected
activity at the time of the adverse employment action.
XI.A.2.c. Respondent's awareness
Where the complainant discussed safety concerns with a safety
inspector from the nuclear project for which the respondent was a
contractor in an open work area with other respondent employees
present, but the complainant presented no evidence to support his
hypothesis that any respondent personnel was actually informed of
his protected activity and admitted that the inspector would not
have informed the respondent, the complainant failed to show that
the respondent was aware of the protected activity at the time
that the decision to lay off the complainant was made, and thus
did not establish a prima facie case.
Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y
Nov. 16, 1992).
XI.A.2.c. Input of person aware of protected activity
sufficient to infer awareness
Where the person who actually discharged the complainant was not
aware of the complainant's protected activity at the time he
discharged the complainant, but an employee whose input
contributed heavily to the decision to terminate the
complainant's employment was aware of the protected activity,
the respondent is deemed aware of the protected activity.
Awareness is determined by looking to those in the decision
making process, and under these circumstances, although the
employee with awareness did not make the decision to discharge
the complainant, his input made him part of the decision making
process. Thompson v. Tennessee Valley Authority,
89-ERA-14 (Sec'y July 19, 1993).
XI.A.2.c. Respondent's awareness
The complainant failed to establish a prima facie case of
retaliation relating to allegations of withdrawal of a security
clearance and controversion of a FECA claim by the respondent
where he presented no evidence that any employee of the
respondent involved in those decisions was aware of his complaint
to the NRC.
The complainant had been trapped in a Post Accident Sampling Room
due to a faulty locking mechanism on the door. The incident was
reported and investigated. The complainant independently
telephoned the NRC about the incident, and later went to the
respondent's Employee Concern Program about the defective door
mechanism. In the interim, the complainant attempted to return
to work, but felt very nervous, short of breath and closed in.
The complainant's personal psychiatrist informed the respondent's
medical services department that he was treating the complainant
for anxiety and panic attacks resulting from the lock-in
incident. Later the psychiatrist informed the respondent that
the complainant was totally disabled from work due to severe
claustrophobia and panic disorder, and could not return to work
for at least another month.
The respondent initiated the procedure to withdraw the
complainant's medical approval for unescorted access to the
nuclear plant's protected areas and to work. The complainant was
eventually denied access.
The complainant filed a claim under the Federal Employees'
Compensation Act due to problems caused by the lock-in incident,
and the respondent objected on the ground that the condition was
preexisting rather than a traumatic injury.
House v. Tennessee Valley Authority, 91-ERA-42
(Sec'y Jan. 13, 1993).
XI.A.2.c. Respondent's knowledge of protected
activity
One of the elements of a prima facie case under section 5851 of
the ERA is proof that the party charged with unlawful
discrimination knew of the Complainant's protected activity.
Where the only proof that the employer knew of Complainant's
raising of safety concerns was evidence that knowledge is fairly
well-communicated within the nuclear power industry, Complainant
failed to establish that the employer had knowledge of his
asserted protected activity. Howard v. Quadrex Energy
Servs., 91-ERA-38 (ALJ June 18, 1991), aff'd
(Sec'y Dec. 10, 1991).
XI A 2 c Use of circumstantial evidence to establish
knowledge
In Dean & Lamb v. Houston Lighting & Power
Co., 93-ERA-7 and 8 (ALJ Apr.
6, 1995), two Complainants alleged that they were terminated from
employment because they had
expressed concerns both internally and to the Nuclear Regulatory
Commission about breaches of
security at a nuclear facility owned and operated by the
Respondent. Those concerns involved visitor
access, compensatory requirements for lighting failures,
management key access to vital spaces, the
lockdown procedure for one electrical generating unit, response
to a power outage, an allegedly
inappropriate relationship between an NRC inspector and a member
of Respondent's Nuclear Security
Department, and a damaged security door knob. A central issue in
the proceeding before the ALJ was
whether the Respondent was aware of the Complainants' protected
activity at the time the
Complainants' employment was terminated due to a layoff.
The Respondent denied categorically that any of the managers or
agents responsible for a
reorganization that resulted in the Complainants' layoffs had
knowledge of the Complainants' protected
activity. As a result, the Complainants' proof had to be
established by circumstantial evidence. The
ALJ found that proof of direct or actual knowledge of protected
activity did not have to be established by
the Complainants. Rather, the Complainants could make out a case
by establishing that the managers
were either aware, or strongly suspected, that the Complainants
had complained to the Nuclear
Regulatory Commission. ALJ slip op. at 555-56, citing Pillow
v. Bechtel Construction, Inc., 87-
ERA-35 (Sec'y July 19, 1993), slip op. at 11-13; Williams v.
TIW Fabrication Machining, Inc., 88-
SWD-3 (Sec'y June 24, 1992), slip op. at 6. In addition, the ALJ
noted that knowledge of protected
activity could be imputed to the Respondent if the ultimate
decision maker had delegated the decision
making authority and ratified the decisions of the subordinates
involved: proof is sufficient if the record
establishes that an employee of the company "with authority
to take the complained of action, or
an employee with substantial input into that decision, had
knowledge of the protected activity."
ALJ slip op. at 57, quoting Bartlik v. Tennessee Valley
Authority, 88-ERA-15 (Sec'y Apr. 7,
1993), slip op. at 4 n.1.
The ALJ carefully reviewed the factual record and concluded that
although the relevant decision making
authority had been delegated, the exercise of that discretion was
influenced by the significant input of
other managers who knew about the Complainants' activities. In
addition, the ALJ found that there was
ample evidence to support an inference that the Respondent's
knowledge of the Complainant's activity
resulted in their selection for layoff. The ALJ concluded,
inter alia,
Viewing the record as a whole, I find that the
methodologies used [by the manager] in
effecting the reorganization and terminations, the
categorical denials of knowledge of the
protected activities by HL&P managers, and the virtual
omnipresence of legal counsel at
critical junctures, disclose an artificially contrived
effort to insulate the managers from the kinds
of information and awareness that sophisticated and diligent
managers in such a small and
technical environment would normally have had.
ALJ slip op. at 78.
The ALJ found that although reorganization of the department in
which the Complainants had been
employed was a plausible reason for the layoff, the evidence
viewed as a whole established that the
reorganization was itself a response to the Complainants'
protected activities, and that their protected
activities permeated and tainted their selection for layoff in
conjunction with the reorganization.
XI.A.2.c. Managers responsible for adverse decision;
failure to show knowledge of
Where Complainant failed to show that a genuine issue of material
fact existed with respect to a requisite element of his prima
facie case of retaliatory discharge, the Secretary approved the
ALJ's granting of summary judgment. In Merriweather v.
Tennessee Valley Authority, 91-ERA-511 (Sec'y Feb. 4,
1994), Complainant asserted that his discharge for the stated
reason that he sexually harassed a female TVA employee was
fabricated and that the reason for his discharge was protected
safety complaints to the NRC. Complainant, however, admitted
that he could not produce any evidence to support a finding that
the TVA managers responsible for the discharge decision knew
anything about his alleged protected activity.
The Secretary cited the following cases as precedent on granting
summary decision:
Street v. J.C. Bradford & Co., 886 F.2d 1472,
1476-1481 (6th Cir. 1989); Smith v. Tennessee Valley
Authority, 90-ERA-12 (Sec'y Apr. 30, 1992); Howard v.
Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3,
1991), aff'd sub nom. Howard v. U.S. Dept. of Labor,
959 F.2d 234 (6th Cir. 1992) [table case; full decision
reported at 1992 U.S. App. LEXIS 6570].
XI. A. 2. c. Respondent's awareness of protected activity
In Dillard v. Tennessee Valley Authority, 90-ERA-31
(Sec'y July 21, 1994), the respondent had placed a restrictive
code in the complainant's personnel file that could prevent
reemployment, but the person who placed the code in the file did
so on the basis of a finding by the Office of the Inspector
General that the complainant had engaged in travel voucher fraud,
and without knowledge of the Complainant's earlier protected
activities. On review, the Secretary found (in the context of
whether an inference of causation was raised for a prima facie
case) that this did not demonstrate animus on the behalf of the
respondent for the protected activity.
[Editor's note: Some of the facts for this case note came
from the ALJ's recommended decision Dillard v. Tennessee
Valley Authority, 90-ERA-31 (Sec'y July 21, 1994).]
XI.A.2.c. Respondent's awareness
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993), the fact that at least one of the persons
who engaged in protected activity together with Complainant was
selected to become a supervisor during a company reorganization
was considered by the Secretary in determining whether the
inference of intentional discrimination element of a prima facie
case was raised. Complainant was contending that he was denied a
promotion in the reorganization because of his participation in
an audit and testimony before the NRC the year before.
The Secretary also took into consideration the number of persons
who testified before the NRC (about 40), that the testimony was
completely confidential, and that the person who made the
decision not to promote Complainant credibly testified that he
was not aware of the substance of Complainant's testimony before
the NRC.
[Editor's note: Secretary ultimately found prima facie case
established for another reason]
XI.A.2.c. Respondent's subjective perception
Even if the person who took adverse action against the
complainant was mistaken in his or her belief that the
Complainant unjustifiably failed to follow supervisory
instructions, a discharge based on that belief is not violative
of the SWDA because the critical focus is on the actor's
knowledge and subjective perception of the circumstances. See
Jeffries v. Harris County Community Action Assoc., 6111 F.2d
1025, 1036 (5th Cir. 1980); Ertel v. Giroux Brothers
Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), slip
op. at 26.
Monteer v. Casey's General Stores, Inc., 88-SWD-1
(Sec'y Feb. 27, 1991).
XI.A.2.c. Respondent's awareness
In Crosier v. Westinghouse Hanford Co., 92-CAA-3
(Sec'y Jan. 12, 1994), when the employees who recommended and
approved the denial of site access to Complainant testified
convincingly that they did not know about Crosier's purported
environmental activities and reports to the government at the
time, the Complainant failed to establish the element of a prima
facie case that the Respondent knew of his protected activities
when it took the adverse action against him.
X.A.2.c. Respondent's awareness
Where it was undisputed that Complainant filed complaints with
the Nuclear Regulatory Commission, Texas Utilities Electric's
Corporate Security, and the Sommerville County Sheriff only after
his lay off, he failed to establish that he engaged in protected
activity prior to the challenged adverse action.
Moreover, there was no evidence indicating that Respondent was
aware of Complainant's concerns at the time the lay off decision
was made.
Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7, 1994).
XI.A.2.c. Respondent's awareness
To establish the element of knowledge of Complainant's protected
activities, the evidence must show that Respondent's managers
responsible for taking the adverse actions had knowledge of the
protected activities. Floyd v. Arizona Public Service
Co., 90-ERA-39 (Sec'y Sept. 23, 1994).
Thus, where the managers responsible for recommending and taking
the adverse actions were not aware of the Complainant's
protected activities, the Complainant has not established a prima
facie case of a violation of the employee protection provision.
XI.A.2.c. Respondent's awareness
Where the complainant discussed safety concerns with a safety
inspector from the nuclear project for which the respondent was a
contractor in an open work area with other respondent employees
present, but the complainant presented no evidence to support his
hypothesis that any respondent personnel was actually informed of
his protected activity and admitted that the inspector would not
have informed the respondent, the complainant failed to show that
the respondent was aware of the protected activity at the time
that the decision to lay off the complainant was made, and thus
did not establish a prima facie case.
Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y
Nov. 16, 1992).
XI.A.2.c. Where single person made employment
decision, focus is on that person's
knowledge
Where the Director of the Quality Assurance Department's credible
testimony was that he alone made the decision not to select
Complainant for a managerial or supervisory position during a
company reorganization, whether the decision was motivated by
intentional retaliatory discrimination depends on that Director's
knowledge and perception of Complainant's protected activity.
[citations omitted]
Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993) (under the circumstances, it was unlikely
that the newly appointed Director was concerned with, or even
aware of, Complainant's protected activity).
XI.A.2.c. Protected activity after quitting
Where all of the complainant's protected activity occurred after
he had quit his job, he could not make out a prima facie case
that the respondent terminated him because of his protected
activity. Hadley v. Quality Equipment Co., 91-TSC-
5 (Sec'y Oct. 6, 1992) (the ALJ had found that the complainant
had not resigned; the Secretary accepted the ALJ's findings of
fact and credibility determinations, but rejected the inferences
he drew from those findings).
XI.A.2.c. Complainant only one of many employees
laid off
Where the Complainant was only one of among 80-90 men who were
included in a reduction in force, and the record established that
the Respondent and at least one of the Complainant's partners
found him to be a difficult employee, the Complainant was not
entitled to an inference that the reduction in force was caused
by the Complainant's filing of quality concerns. Emory v.
North Brothers Co., 86-ERA-37 (ALJ Jan. 7, 1987),
aff'd, (Sec'y May 14, 1987).
In Henrey v. Pullman Power Products, Corp., 86-ERA-13
(Sec'y June 3, 1987), the Secretary adopted the findings that the
Complainant had failed to engage in protected activity and that
the Respondent terminated the Complainant for insubordination.
The Secretary added that even if his complaint to an inspector
was considered protected activity, there was no evidence that
any company official was aware of this complaint or that it
played any role whatsoever in the decision to discharge. The ALJ
found, and the Secretary agreed, that the management officials
involved were unaware of any of the activities on which he based
his complaint. Therefore, the Complainant did not establish a
prima facie case by showing that he engaged in protected
activity or that the employer was aware of the activity and took
adverse action.
XI. A. 2. c. Respondent's awareness of protected
activity
In Dillard v. Tennessee Valley Authority, 90-ERA-31
(Sec'y July 21, 1994), the respondent had placed a restrictive
code in the complainant's personnel file that could prevent
reemployment, but the person who placed the code in the file did
so on the basis of a finding by the Office of the Inspector
General that the complainant had engaged in travel voucher fraud,
and without knowledge of the Complainant's earlier protected
activities. On review, the Secretary found (in the context of
whether an inference of causation was raised for a prima facie
case) that this did not demonstrate animus on the behalf of the
respondent for the protected activity.
[Editor's note: Some of the facts for this case note came
from the ALJ's recommended decision Dillard v. Tennessee
Valley Authority, 90-ERA-31 (Sec'y July 21, 1994).]
The order and allocation of burdens of proof and production in
Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25,
1983) are applicable only where circumstantial evidence of
discrimination is presented. If direct evidence of
discrimination exists, and it is not effectively rebutted, a
respondent can avoid liability only by showing it would have
taken the same action in the absence of protected activity.
Blake v. Hatfield Elec. Co., 87-ERA-4 (Sec'y Jan. 22,
1992). Bartlik v. Tennessee Valley Authority, 88-
ERA-15 (Sec'y June 24, 1992), slip op. at 4.
[Nuclear and Environmental Whistleblower Digest XI A 2 d]
RETALIATORY ANIMUS; STRAY BOASTFUL REMARK BY SUPERVISOR INSUFFICIENT TO ESTABLISH ANIMUS WHERE OTHER SUPERVISORS WERE RESPONSIBLE FOR LAYOFF, JOB OFFERS MADE TO COMPLAINANT
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant presented testimony to the effect that Complainant's immediate supervisor had boasted that he was the only one with enough guts to get rid of Complainant. The ARB questioned whether there was credible proof that the statement was made, but even assuming it was made, declined to ascribe significance to it, noting that it was made after Complainant had been laid off, and that the supervisor had pressed his supervisors to offer Complainant another position. Moreover, the ARB concluded that other supervisors, and not Complainant's immediate supervisor, were responsible for placing Complainant on layoff, and for making decisions about offering Complainant other positions. Thus, even if the remark had been made "it would not be legally significant in connection with [Complainant's] layoff and subsequent job offers, which were determined by higher-level ASIS personnel." Slip op. at 12 (citation omitted).
[Nuclear & Environmental Digest XI A 2 d]
CAUSATION; REQUIREMENT OF DIRECT EVIDENCE SHOWING SPECIFIC LINK
BETWEEN IMPROPER MOTIVE AND CHALLENGED EMPLOYMENT DECISION
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), the ARB, once finding that Complainant had engaged in protected activity and that
Respondent knew about that protected activity, looked to the question of whether Complainant
established by a preponderance of the evidence that his termination from employment was in
response to his protected activity. The ARB wrote that "[t]he finding that there is an
illegitimate motive requires direct evidence 'showing a specific link between an improper motive
and the challenged employment decision.'" Slip op. at 15, quoting Carroll v.
USDOL, 78 F.3d 352, 357 (8th Cir. 1996) (case below 1991-ERA-46).
[N/E Digest XI A 2 d]
DIRECT EVIDENCE OF ANIMUS; COMPLAINANT MUST STILL ESTABLISH
CAUSAL CONNECTION TO ADVERSE EMPLOYMENT ACTION
The fact that Complainant's supervisor candidly acknowledged that he would prefer not to
supervise an employee who, without authorization, gave business documents to a reporter and to
Congress, and that he suspected that Complainant had participated in such activities, does not
end the inquiry in a DOL ERA whistleblower proceeding. Rather, the complainant has the
burden to establish that the supervisor's animus against supervising whistleblowers was a
contributing factor in an adverse action. Trimmer
v. Los Alamos National Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8,
1997).
[N/E Digest XI A 2 d]
MOTIVE; "UNION MENTALITY" OF COMPLAINANT
Where the company official who made the decision to discharge Complainant based his
decision in part on Complainant's "union mentality," and that official's description of
what he meant by union mentality included Complainant's complaints about ALARA (the NRC
regulation requiring licensees to maintain radiation exposures and releases in unrestricted areas
"as low as reasonably achievable" 10 C.F.R. § 20.1(c)) and glove sizes, there
was direct evidence of discrimination for illegitimate reasons. The Board found that these
concerns were reasonably perceived violations of the ERA. MacLeod v. Los Alamos
National Laboratory, 94-CAA-18 (ARB Apr. 23, 1997)(this was actually an
"ERA" case).
RESPONDENT'S AWARENESS
[N/E Digest XI A 2 d]
In Smith v. Esicorp, Inc., 93-ERA-16
(Sec'y Mar. 13, 1996), the Secretary found that the presence
in a lunchroom used by many employees of cartoons depicting
the Complainant as a whistleblower was evidence indicating
that the managers were aware of the Complainant's reputation
or history as a NRC whistleblower. The Secretary assumed
that managers, although located on a different floor, also
used the lunchroom.
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.
XI A 2 d Complaint to supervisor is complaint to
respondent's
management
In Jackson v. The Comfort Inn, Downtown, 93-CAA-7
(Sec'y Mar. 16, 1995), the
Secretary indicated that a complaint to a supervisor is a
complaint to the Respondent's management.
Where the complainant alleged that he was blacklisted by a power
company because of his complaints to the NRC during his
employment with that company, and asserted that he wished to
pursue a complaint against an employment agency through which he
had been unsuccessfully attempting to obtain employment to
explore whether that agency had information concerning the
alleged blacklisting, the Secretary, declining to reach the issue
of whether the agency was a covered respondent under the ERA,
dismissed the complaint because the complainant had failed to
allege the essential element of a prima facie case of adverse
action by the employment agency.
Doyle v. Bartlett Nuclear Services, 89-ERA-18
(Sec'y May 22, 1990).
XI.A.3. Existence of adverse action
Where the respondent submitted evidence on a motion for summary
judgment showing that it has a policy of compliance with a NRC
Regulatory Guide recommending that quality control personnel at
nuclear construction projects be a high school graduate or have
earned a GED equivalent, and the complainant admittedly did not
satisfy these requirements nor did he present any evidence to
refute the respondent's contention that it consistently follows
the guideline, the complainant could not make out a prima facie
case of discriminatory refusal to rehire or hire with respect to
the quality control positions because he cannot show that he has
the educational qualifications required.
Nevertheless, the complainant also alleged that he sought
"comparable position[s]" with the Respondent and that
he was blacklisted by the respondent. The Secretary remanded to
the ALJ for consideration of these allegations.
The complainant and the respondent had reached a settlement of an
earlier ERA complaint. Apparently an oral term of the settlement
was (according to the complainant) "reemployment at a
comparable position." The respondent was apparently mislead
about the complainant's education when he previously was employed
as a quality control inspector. Bryant v. Ebasco Services,
Inc., 88-ERA-11 (Sec'y July 9, 1990).
[Editor's note: On remand, the ALJ found that the settlement did
include a promise of reinstatement to a "comparable
position" but not necessarily until layoffs ended and
vacancies arose. Upon consideration of the fact that the
complainant obtained the position by fraud, and maintained that
fraud through the settlement negotiations, and in the
reapplication for employment, the ALJ struck the
"fraudulently procured portions of the settlement agreement
. . ., that is, the continued employment provisions." In
addition, the ALJ found that the educational discrepancy was an
independent basis for discharging the complainant. Bryant v.
Ebasco Services, Inc., 88-ERA-11 (ALJ Feb. 27, 1992).]