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,
and ordered that he be reinstated to his former, or comparable,
position. Section 5851(b)(2)(B) provides that an aggrieved party
shall be reinstated "to his former position." The
court stated that in the absence of a clear indication why this
language cannot be given effect, the Secretary shall do precisely
that on remand. The court further stated that "in any event
it would certainly appear that the Secretary or perhaps DeFord,
as opposed to TVA, should control the decision whether an
alternative job must be found."
DeFord v. Secretary of Labor, 700 F.2d 281, 289
(6th Cir. 1983).
[Nuclear & Environmental Whistleblower Digest XVI B 1] REINSTATEMENT; PURPOSES TO MAKE WHOLE AND TO PROVIDE DETERRENT
In Hobby v. USDOL, No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the Eleventh Circuit stated: "In addition to making the whistleblower whole again, reinstatement also serves as an important deterrent to other discriminatory acts that might be committed by the offender."
[Nuclear & Environmental Digest XVI B 1]
REINSTATEMENT; INCLUSION OF NEEDED TRAINING FOR RE-ASSIMILATION
In the order of reinstatement in Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB also required Respondent to provide any training needed to re-assimilate Complainant into the company.
[Nuclear & Environmental Digest XVI B1]
REINSTATEMENT; LEVEL AT WHICH REINSTATEMENT SHOULD OCCUR; COMPLAINANT'S BURDEN OF PROOF
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Complainant argued that he should be reinstated at a higher level based on his prior history of promotions and a tracking of other executive's careers. The ARB held that it is Complainant's burden to prove that his reinstatement should be at a level higher than he occupied when he was terminated, and that a "likelihood of promotion" is the primary test - a standard that involves demonstrating a predictable career path or career ladder. The Board found that Complainant's "historical" approach did not have the more particularized proof that is required. The assumption cannot be made that all "rising stars" in the executive suites will continue to ascend the corporate ladder - rather there must be specific evidence that the complainant himself or herself would have been likely to achieve particular higher-level positions.
The ARB found solid precedent in support of the job tracking method, but found that even under this approach a court must be able to conclude that the plaintiff would have achieved the positions of the employees chosen as comparators or closely similar positions. The ARB found that Complainant had not shown that the persons he sought to compare were appropriate for comparison.
[N/E Digest XVI B 1]
REINSTATEMENT; COMPLAINANT DOES NOT HAVE OBLIGATION TO PRESENT
HIMSELF/HERSELF; RATHER RESPONDENT OBLIGED TO MAKE OFFER
In Hoffman v. Bossert,
94-CAA-4
(ARB Jan. 22, 1997), the ALJ erred
in denying back pay for a period following Complainant's recovery from surgery
on the ground
that Complainant had not made himself available for reinstatement with
Respondent. The Board
stated that Complainant's failure to present himself for reinstatement was
irrelevant because
Respondent had the obligation to offer reinstatement.
XVI B 1 Reinstatement; possibility of constructive
discharge between time of ALJ's recommended
decision and Secretary's final decision requires
remand for hearing on that issue
In Martin v. The Department of the Army, 93-SDW-1
(Sec'y July 13, 1995), the Respondent alleged in a reply brief
before the Secretary that the Complainant had resigned. The
Complainant later acknowledged that he no longer worked for the
Respondent. At the time of the ALJ's recommended decision, the
Complainant still worked for the Respondent.
Although the Secretary reversed the ALJ's decision, and found
that Complainant was entitled to relief under the SDWA, he
concluded that reinstatement may not be appropriate. Rather, a
new issue of whether the Complainant was constructively
discharged required a remand to the ALJ for a determination on
that matter.
In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006),
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the Complainant testified that he was wary of returning to his job, but stated that he requested reinstatement. Without extended discussion, the ALJ awarded front pay in lieu of reinstatement. The ARB noted that under applicable law and the record before it, reinstatement would have been the appropriate remedy. However, because neither party raised reinstatement as an issue on appeal, it accepted the ALJ's recommended remedy of front pay.
XVI B 2 Reinstatement of
"at-will"
employee; front pay as remedy
when reinstatement not possible
SeeMarchese v. Goldsmith, 1994 U.S. Dist.
LEXIS 7940 (E.D. Pa. 1994),
aff'd without op., 1995 U.S. App. LEXIS 2694 (3d Cir.
1995) (order denying motion for new trial
in First Amendment case; related Part 24 action 92-WPC-5),
indicating that reinstatement is an
appropriate remedy in First Amendment retaliation cases, even
where the employment is "at-
will." Front pay in lieu of reinstatement may be
appropriate if circumstances render reinstatement
impossible or inappropriate; the fact that reinstatement was
unavailable (in Marchese,
the defendant had privatized the waste treatment plant's
laboratory, thereby eliminating the plaintiff's
position), however, does not trigger a front pay award
automatically -- the fact-finder can award
compensatory damages only for proven losses that the plaintiff
actually suffered. The risk of lack of
certainty with respect to projections of lost income, however,
are borne by the wrongdoer, not the
victim.
[Editor's note: This is a First Amendment case,
case noted only for background.]
REINSTATEMENT; CHANGE IN CORPORATE IDENTITY
[N/E Digest XVI B 2]
In the May Newsletter, the supplemental order regarding
remand in Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) was casenoted to
the effect that upon the sale of a subsidiary, the company that
retained liability would have the obligation to reinstate the
Complainant to a substantially similar position. The matter was
revisited in Creekmore v. ABB Power Systems Energy
Services, Inc., 93-ERA-24 (ARB June 20, 1996)
The Respondent asked for reconsideration because that ruling
had the effect of ordering an entity that was not a party to the
current action to reinstate the Complainant. Specifically, the
company that sold the subsidiary that employed the Complainant
retained the obligation to defend the action and to indemnify the
new owner against monetary damages. That company was not a named
Respondent. The Board noted that the entity that violated the
ERA has the obligation to offer reinstatement to the Complainant,
which in this case was the named Respondent. It continued:
"If a separate contractual obligation exists that requires
another entity to assume [the offender's] reinstatement
obligation, the proper means to resolve that dispute is through
an enforcement action." Slip op. at 3.
The Board noted that the Department of Labor would not
normally be concerned with a private indemnity agreement, but
that the Department has the responsibility to enforce the
employee protection provision of the CAA and to ensure that a
bona fide reinstatement is offered. Observing that the
selling company's interests and the offending former subsidiary's
interest had diverged on the issue of reinstatement, the Board
directed the ALJ on remand to give the selling company notice and
an opportunity to be heard on this issue. The Board pointed out
to the parties' that back pay liability continues to accrue until
a bona fide offer of reinstatement is made.
REINSTATEMENT; CHANGE IN CORPORATE ENTITY
[N/E Digest XVI B 2]
Where the Complainant was employed by a subsidiary of a
company that retained the liability on the Complainant's
complaint when the subsidiary was sold, the company that retained
the liability would have the obligation to reinstate the
Complainant to a substantially similar position. Creekmore
v. ABB Power Systems Energy Services, Inc., 93-ERA-24
(Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand).
XVI B 2 Reinstatement as part of settlement
agreement
In Bryant v. Ebasco Services, Inc., 88-ERA-31
(Sec'y Apr. 21, 1994), as part of a settlement agreement
regarding Complainant's original ERA whistleblower complaint,
there was an oral agreement to rehire complainant to a comparable
position -- at least according to Complainant. Respondent
contested the existence of such an oral agreement, but the ALJ
found that there was such an agreement based on credibility
determinations. The Secretary declined to make a finding on this
matter in view of his finding that Respondent presented
sufficient evidence of its legitimate reasons for not rehiring
Complainant so as to rule out any discriminatory motive.
The Secretary found that Complainant presented evidence on all
the elements of a prima facie case, but noted that Respondent
presented uncontroverted testimony that it sought reemployment
for Complainant by submitting his name for work on potential
future contracts, and that Respondent's clients decided which of
the offered candidates are hired. Later, Respondent discovered -
- after the negotiation of the settlement agreement and
Complainant's filing a his second ERA complaint (for violating
the terms of the settlement agreement and blacklisting) -- that
Complainant had misrepresented his educational qualifications for
the position. After that date, Complainant was not considered
for rehire.
The Secretary found that Complainant failed to show pretext,
noting that Complainant admitted that he is not qualified for
positions in a nuclear power facility. The Secretary also found
that even assuming Complainant's protected activity played a part
in the failure to rehire, under the "dual motive"
analysis, Respondent sufficiently demonstrated that it would not
have rehired Complainant even absent the protected activity.
In a footnote, the Secretary observed that in cases involving the
post-discharge discovery of resume fraud, the after-acquired
evidence doctrine has been applied by the courts to bar recovery
by complainants. See McKennon v. Nashville Banner
Publishing Co., 9 F.3d 539 (6th Cir. 1993); Summers v.
State Farm Mut. Auto Ins. Co., 864 F.2d 700 (10th Cir. 1988);
Puhy v. Delta Air Lines, Inc., 833 F. Supp. 1577 (N.D. Ga.
1993).
XVI B 2 How to handle situation where former position no
longer exists or is no longer available
In DeFord v. Tennessee Valley Authority, 81-ERA-1
(Sec'y Aug. 16, 1984), the Secretary issued an Order on Remand
from the Sixth Circuit, see DeFord v. Secretary of Labor,
700 F.2d 281 (6th Cir. 1983), in which he implemented the court's
direction to revise DeFord's remedies.
The Secretary directed Respondent to reinstate Complainant to his
former position, and stated that "[i]f his former position
no longer exists or there is no vacancy, TVA shall apply to the
Administrative Law Judge for approval of the job in which it
proposes to place DeFord with an explanation of the duties,
functions, responsibilities, physical location and working
conditions of the job sufficient for the ALJ to determine whether
it is comparable to DeFord's former position."
In a plurality opinion, the Supreme Court reversed the
district court's entry of a preliminary injunction against the
enforcement of an interim Secretary's order directing the
employer to reinstate a discharged employee. The Court found
that §405 was not unconstitutional on its face, but rather,
required the Secretary only to provide notice to the employer of
the employee's allegations, notice of the substance of the
relevant supporting evidence, an opportunity to file a written
response, and an opportunity to meet with the investigator and
present rebuttal witnesses. Due process did not require a full
evidentiary hearing or cross-examination of the interviewed
witnesses at the investigative stage of the proceeding.
Brock v. Roadway Express, Inc., 481 U.S. 252,
reversing, in part, Roadway Express, Inc. v. Donovan, 603
F.Supp. 249 (N.D. Georgia 1985) (Justices Rehnquist, Scalia, and
White disagreed that the employer had a right to know the
identities of the government's witnesses).
[Nuclear & Environmental Whistleblower Digest XVI B 3] PRELIMINARY ORDER; ALJ'S OBLIGATION TO ISSUE PRELIMINARY ORDER WHERE COMPLAINT IS MERITORIOUS; JURISDICTION LOST ONCE PARTY FILES PETITION FOR ARB REVIEW
In an ERA whistleblower case, where the ALJ finds that the complaint has merit, the ALJ is required under 29 C.F.R. § 24.7(c)(2) (2002) to issue a preliminary order granting interim relief such as reinstatement, back pay, and such other actions as may be necessary to abate the violation B but not compensatory damages.
In Trueblood v. Von Roll America, Inc., ARB Nos. 03 082 and 03 083, ALJ Nos. 2002 WPC 3 to 6 and 2003 WPC 1 (ARB Apr. 30, 2003), the ARB remanded the case where the ALJ had not issued the preliminary order required under 29 C.F.R. § 24.7(c)(2) (2002), until after the Respondent had already petitioned for ARB review of the Recommended Decision and Order. The ARB questioned whether the ALJ retained jurisdiction once the petition for review had been filed, and therefore remanded the cased for issuance of the preliminary order with leave to Respondents to refile their petitions for review within 10 days of the issuance of the preliminary order on remand.
In McNeill v. Crane Nuclear, Inc., ARB No. 02 002, ALJ No. 2001 ERA 3 (ARB Dec. 20, 2002), the Respondent filed a motion with the ARB seeking stay of the preliminary relief order. The ARB denied the motion, however, because the ALJ had not issued a preliminary order.
[N/E Digest XVI B 3]
PRELIMINARY ORDER TO BE ISSUED BY ALJ
Amended section 24.7(c)(2) provides that upon issuing a recommended order
finding a violation in an ERA case, the ALJ shall also issue a
preliminary order providing all the relief specified in paragraph (c)(1) of this section
[i.e., affirmative relief, such as reinstatement and back pay] with the exception of
compensatory damages. This preliminary order shall constitute the preliminary order of
the Secretary and shall be effective immediately.
Issuance of preliminary orders upon an ALJ recommended order finding a
violation of the ERA whistleblower provision is not new, but up to now, the ARB has
handled
issuance of the preliminary order. It will now be the ALJ's responsibility. The following
ARB
orders, which are found on the OALJ Web Site, illustrate how the ARB has implemented the
preliminary order requirement:
Smith v. Esicorp, Inc.,
93-ERA-16 (ARB Apr. 3, 1997), illustrates the ARB's refusal to issue a preliminary
order for a pre-1992 amendments case.
Varnadore v. Oak Ridge National
Laboratory, 94-CAA-2 and 3 (ARB Sept. 6, 1996), illustrates the ARB's
holding that the preliminary order should include attorney's fees, and the ARB's
order to the attorney to repay the fees once the ARB revised the ALJ's holding in
favor of the complainant.
Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 8, 1997), illustrates the ARB's
preliminary order requiring Respondent to comply with the ALJ's order to
expunge and post the Recommended Decision -- but declining to require
Respondent to release the ALJ's decision to the press.
[N/E Digest XVI B 3]
PRELIMINARY ORDERS UNDER THE ERA NOT AUTHORIZED FOR
COMPLAINTS FILED PRIOR TO OCTOBER 24, 1992
In Smith v. Esicorp, Inc.,
93-ERA-16
(ARB Apr. 3, 1997), the Board denied Complainant's request that the Board
issue a
preliminary order pursuant to the ERA ordering Respondent to pay attorney's
fees and costs
because the instant case was filed prior to the 1992 amendments to the ERA.
Such preliminary
orders were not authorized prior to the effective date (Oct. 24, 1992) of the
Comprehensive
National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123.
[N/E Digest XVI B 3]
PRELIMINARY ORDER UNDER THE ERA; NONPECUNIARY FORMS OF RELIEF
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 8, 1997), the ALJ found in favor
of
Complainant and recommended various forms of relief, including (1) expungement
of any
reference to the adverse action against Complainant from all University files;
(2) posting of the
ALJ's recommended decision and order on appropriate bulletin boards for a
period of not less
than 60 days; and (3) release, without comment, of the recommended decision
and order to the
press. In its preliminary order of relief, the Board ordered Respondent to
comply with items (1)
and (2). The Board, however, declined to issue a preliminary order on item
(3) because it
questioned whether it had the authority to order such relief even in a final
order.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; POST-REINSTATEMENT
PERFORMANCE EVALUATIONS AND REFERENCES
[N/E Digest XVI B 3 and XVI G 2 a]
In McNeice v. Northeast
Nuclear Energy Co., 95-ERA-18 and 47 (ARB July 3,
1996), the Board clarified the Secretary's earlier Preliminary
Order and Order of Remand, which directed Respondent to correct a
1994 performance evaluation relating to Complainant. The Board
stated that the directive only affected that performance
evaluation, and not any performance evaluations subsequent to
Complainant's reinstatement in 1996. The Board noted, however,
that post reinstatement evaluations must not reflect anything
other than a fair and accurate evaluation of the Complainant's
performance.
In addition, the Board noted that the preliminary order
directing Respondent not to give a less than satisfactory
reference regarding Complainant, only related to the period up to
Complainant's 1996 reinstatement. The Board stated that if
Complainant ceases to be employed by Respondent in the future,
Respondent is expected to provide a fair and accurate reference
of Complainant's performance subsequent to the 1996
reinstatement.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; TYPES OF RELIEF
ENFORCED
[N/E Digest XVI B 3 and XVI G 2 b]
In McCafferty v.
Centerior Energy, 96-ERA-6 (ARB July 15, 1996), the
ALJ issued a recommended decision and order in favor of
Complainants. The Board issued a Preliminary Order directing
Respondent to comply with various forms of relief recommended by
the ALJ: reinstatement of Complainants in accordance with
certain directives by the ALJ; payment of back pay with interest;
removal of denial of access flags from the records of all
Complainants. The Board indicated that it would supplement the
Preliminary Order once the ALJ issued his recommended
supplemental decision and order concerning costs and expenses,
including attorney's fees.
The ALJ had ordered reinstatement of one Complainant -- who
had been denied access to at least one of Respondent's facilities
because of falsification of a self-disclosure questionnaire -- be
conditioned on compliance with NRC regulations. The ALJ held
that if NRC regulations mandated a professional assessment before
reinstatement, that Complainant should be given the opportunity
to pursue the assessment. McCafferty v. Centerior
Energy, 96-ERA-6 (ALJ June 11, 1996).
XVI. B. 3. Immediate issuance of ERA reinstatement
orders
In Zinn v. University of Missouri, 93-ERA-34 and 36
(Sec'y June 30, 1994) (preliminary order), the ALJ
found that Respondent's failure to consider Complainant
Zinn for promotion was retaliatory and that Complainant
Morris' demotion also was in violation of the ERA, and
ecommended ordering that the procedures for establishing
a promotion committee for Complainant Zinn should be
initiated within 10 days of the Secretary's final order, and
that Complainant Morris should be reinstated to his former
positions within 10 days of the Secretary's final
order.
Upon review, but prior to considering the case on its merits, the
Secretary noted that the ERA was amended in 1992 to, among other
things, require the Secretary to order interim relief as soon as
an ALJ issues a recommended decision finding that the complaint
has merit. Comprehensive National Energy Policy Act § 2902,
Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). Pursuant to
42 U.S.C. § 5851(b)(2)(A), therefore, he was required at
that time issue "a preliminary order providing the relief
prescribed. . . but may not order compensatory damages pending a
final order."
The Secretary rejected ALJ's recommended order of remedies to the
extent that he delayed implementation until up to 10 days after
the Secretary's final order. The Secretary ordered Respondent to
comply with the remedies as described in the ALJ's R.D. and O.
without further delay.
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 ALJ found that reinstatement was no longer an issue because the Complainant's appointment was only for two years, with a possible extension to four years. The Complainant had been fired at the end of his probationary year, and the ALJ ordered the Respondent to pay the Complainant's salary and benefits through the end of his term appointment. On appeal, the Complainant argued that he should have been reinstated long enough for so that the Respondent could have made the decision regarding his continued employment that it would have been required to make absent its retaliatory discharge. The ARB observed that project management at the cleanup site at which the Complainant worked had been transferred to a state office, and that later EPA had taken over clean-up efforts, resulting in the Complainant's job no longer being in existence, and therefore making reinstatement not possible. Noting that front pay may be a remedy when reinstatement is not possible, the ARB agreed with the ALJ's order for the Respondent to pay the Complainant's salary and benefits from the date of his firing until the end of his appointment. The ARB stated that while the Complainant's appointment might have been extended for another two years, front pay beyond the ALJ's award would be purely speculative.
[Nuclear and Environmental Digest XVI B 4] FRONT PAY; USE OF "ALASKA RULE" TO OBVIATE NEED FOR DISCOUNTING TO PRESENT VALUE
In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB June 27, 2007), the ARB granted the Respondent's motion to reconsider its front pay award, arguing that the ARB should have discounted it to present value. On reconsideration, the ARB declined to discount to present value, but did modify the award based on the analysis found in Jackson v. City of Cookeville, 31 F.3d 1354, 1361 (6th Cir. 1994), in which the court affirmed a district court's use of a variation of the "Alaska Rule" – i.e., a "total offset" approach that obviates the need for discounting by refraining from calculating future salary increases into the front pay award.
[Nuclear & Environmental Whistleblower Digest XVI B 4] FRONT PAY; DISCOUNT TO PRESENT VALUE
In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006),
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the ARB, although acknowledging that a front pay award is typically discounted to present value, declined to apply a discount rate in the appeal before it because the period of the front pay award had already ended before the appeal was decided and because the Complainant had not yet received his front pay.
XVI B 4 Complainant does not seek
reinstatement; ALJ must inquire as to why
When a complainant states at a hearing that reinstatement is not
sought, the parties or the ALJ should
inquire as to why. If there is such hostility between the
parties that reinstatement would not be wise
because of the irreparable damage to the employment relationship,
the ALJ may decide not to order
reinstatement, and may order front pay. If, however, the
complainant gives no strong reason for not
returning to his former position, reinstatement should be
ordered. If reinstatement is ordered, the
respondent's back pay liability terminates upon the tendering of
a bona fide offer of reinstatement, even
if the complainant declines the offer. See Dutile v. Tighe
Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994). West v. Systems Applications
International, 94-CAA-15 (Sec'y Apr. 19, 1995).
[Nuclear & Environmental Whistleblower Digest XVI B 4]
FRONT PAY; CANNOT BE PREMISED ON SPECULATION AS TO COMPLAINANT'S POSITION
In Moder v. Village of Jackson, Wisconsin, ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003), the ARB declined to adopt the ALJ's recommendation of a front pay award where the record failed to support the ALJ's speculation that Complainant quit because of a hostile work environment. After the hearing but before the decision, Complainant had been awarded the position for which he had been earlier passed over. The person who had been awarded the position, to which the ALJ later found Complainant had been denied in part due to retaliation for protected activity, was promoted. Complainant subsequently quit but never placed into the record information concerning the reasons for his leaving the employment. Since he provided no evidence as to why being awarded the position was not a sufficient make whole remedy, together with back pay, the ARB declined to award front pay.
[Nuclear & Environmental Whistleblower Digest XVI B 4] REINSTATEMENT; PRACTICALITY; JOB AVAILABILITY; ABSENCE FROM FIELD; ANIMOSITY AND HIGH LEVEL POSITION
In Hobby v. USDOL, No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the Eleventh Circuit found no error in the ALJ and ARB's reinstatement order. The court found that substantial evidence supported the ALJ's finding that Respondent's witness who testified to her conclusion that Complainant was not qualified for any position at Respondent was not credible because she had omitted several positions from her consideration and ignored much of Complainant's work history.
Respondent argued that Complainant's long absence from the field rendered it impracticable for him to assume a senior management position. The court agreed with the ALJ and the ARB that "[i]t would be patently unfair for [Respondent] to avoid reinstatement because this case has proceeded slowly and, due to the circumstances of his termination coupled with his age, [Complainant] has not been able to find another job in the industry."
The court also rejected Respondent's claim that it was inappropriate to require reinstatement of an employee into a high level managerial position in certain circumstances involving pervasive animosity between the employer and the employee where the court found no evidence of such animosity, observing that all of people involved in retaliation against Complainant no longer worked for Respondent, and that mere hostility attendance to a lawsuit was not normally preclusive of reinstatement.
[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT V. FRONT PAY
In Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB detailed the reasons why reinstatement is the presumptive remedy in wrongful discharge cases, but acknowledged that certain circumstances dictate alternative remedies such as front pay. Respondent presented three arguments why reinstatement was not appropriate:
(1) Complainant should not be reinstated to a senior management position because he lacked the skills needed to perform such work and because other corporate executives therefore would not have confidence in his abilities;
The ARB observed that the record plainly showed that Complainant demonstrated a high level of competence and trustworthiness over a period of years with Respondent, and was generally held in high regard prior to his termination. In finding that Complainant's long absence from the corporate suites was not sufficient reason not to order reinstatement, the ARB quoted with approval the ALJ's observation that "Respondent terminated Complainant because of protected activity, and now seeks to benefit from the fruits of its act of wrong doing."
(2) Other managers would not view Complainant as trustworthy after having litigated a whistleblower complaint against the company;
The ARB found that the frictions and inconveniences cited by Respondent were insufficient reason to deny reinstatement.
(3) There is no longer a comparable position within the company to which Complainant can be reinstated.
Although the division that Complainant headed at the time of his termination was disbanded and absorbed into other parts of the company, and the ARB declined to order Respondent to re-institute the division or an equivalent entity, it also found that Respondent and Complainant were both too limited in their approach to the range of positions to which Complainant might be reinstated. The ARB held: "Stated simply, the reinstatement language of the ERA whistleblower protection section does not require that a prevailing complainant be reinstated to the precise position formerly occupied, only to a comparable position; to view the statutory text otherwise would allow an employer to evade reinstatement merely by abolishing or reconfiguring the particular position that a discharged complainant had occupied."
[Nuclear and Environmental Whistleblower Digest XVI B 4]
STIPULATION; ARB WILL HOLD PARTIES TO STIPULATION ABSENT A
PROVISION THAT IS CONTRARY TO PUBLIC POLICY
In Doyle v. Hydro Nuclear
Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB
May 17, 2000), Complainant sought an additional year of front pay because Respondent allegedly
did not comply with a verbal agreement to reach promptly a full stipulation as to the damages.
The ARB observed that the parties had reached a final stipulation as to damages including front
pay and held that absent a provision of a stipulation that is contrary to public policy, the parties
will be held to their bargain where they have fairly entered into the stipulation.
[Nuclear & Environmental Digest XVI B 4]
BACK PAY; CUT-OFF DATE WHEN FRONT PAY BEGINS
Where a complainant is not physically able to be reinstated immediately, and therefore
front pay is being used as a substitute, back pay liability is cut-off on the date of final judgment
because front pay begins at that point. Berkman v. U.S. Coast Guard
Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000).
[Nuclear & Environmental Digest XVI B 4]
FRONT PAY; DISCOUNT TO PRESENT VALUE
As a payment of future damages, a front pay award must be discounted to present value.
Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), citingMichaud & Ass't Sec'y v. BSP
Transport, Inc., ARB No. 97-113, ALJ No. 1995-STA-29 , slip op. at 6 (ARB Oct. 9, 1997),
reversed on other grounds sub nom. BSP Trans, Inc. v. United States Dept. of Labor,
160 F.3d 38 (1st Cir. 1998).
[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT; DELAY IN IMPLEMENTATION; AUTHORITY TO ORDER
REORGANIZATION OF ENVIRONMENTAL OFFICE; FRONT PAY AS TEMPORARY
SUBSTITUTE FOR REINSTATEMENT
In Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No.
1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ALJ had found that immediate reinstatement of
Complainant was not possible because of Complainant's mental condition, even though
Complainant had requested reinstatement. Thus, the ALJ's recommended order was that
Respondent delay its reinstatement offer for one year from the final judgement and pay front pay
during that year. This ruling was predicated on Complainant's physician had prediction that
Complainant's condition would significantly improve once he was removed from his stressors.
The ARB declined to adopt the ALJ's finding that Complainant will be able to return to
work one year from the final judgment because the evidence on Complainant's current ability to
work had become stale. Thus, the case was remanded with instructions to take evidence and
make a supplemental recommended decision on this issue.
The ARB agreed with the ALJ that any reinstatement order could not include an order
requiring Respondent to reorganize its environmental program such being beyond the DOL's
mandate.
The ARB noted that front pay may be used as a substitute when reinstatement is not
possible for some reason, and ordered that, if on remand the ALJ determines that Complainant's
medical condition will permit reinstatement, but at a future time, the ALJ shall order front pay
for the period until reinstatement is possible. On the other hand, if the ALJ finds that
Complainant will not be able to be reinstated as Respondent's environmental engineer, he shall
order payment of front pay for the period until Complainant is able to obtain other work
commensurate with that position.
[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT; EVENTS OCCURRING AFTER HEARING; PRODUCTIVE AND
AMICABLE WORKING RELATIONSHIP
In Jones v. EG & G Defense Materials,
Inc., 1995-CAA-3 (ARB Dec. 24, 1998), Complainant was successful in
establishing entitlement to relief under the the employee protection provisions of the Clean Air
Act, 42 U.S.C. §7622, the Toxic Substances Control Act, 15 U.S.C. §2622 , and the
Resource Conservation and Recovery Act, 42 U.S.C. §6971. Respondent sought
reconsideration based upon, inter alia, events occurring after the hearing that allegedly
made reinstatement impossible. Upon reconsideration, the ARB noted that under the CAA and
the TSCA, reinstatement is an automatic remedy (under the RCRA, it is an option). The ARB
observed that "[i]n rare instances, front pay may be used as a substitute for reinstatement
where there is 'irreparable animosity between the parties,' Blum v. Witco Chem. Corp.
829 F.2d 367, 374 (3d Cir. 1987), and 'a productive and amicable working relationship would be
impossible.' EEOC v. Prudential Federal Sav. and Loan Ass'n, 763 F.2d 1166, 1172
(10th Cir.), cert. denied, 474 U.S. 946 (1985)." Jones, 1995-
CAA-3 @ 10. The ARB, however, rejected each of Respondent's arguments as to the
impossibility of a productive and amicable working relationship.
Complainant obtained a new job in a different State. The ARB distinguished
Title VII authority cited by Respondent because under Title VII, reinstatement is merely
optional. The ARB also found it significant that Complainant had submitted an affidavit
stating that he still wishes to be reinstated, is willing to move, and believes that an
amicable and productive working relationship is possible.
"Difficulties" between Complainant and some subordinates.
Respondent argued that "difficulties" existing between Complainant and
some of his subordinates in the safety department would prevent a productive working
relationship, stressing that "dramatic changes" had been made, including a
trebling of employees since Complainant was a manager. The ARB, however, found that
the additional employees and changes in the department would tend to diminish the
impact of past disagreements between Complainant and his subordinates (e.g.,
the absence of the person responsible for discharging Complainant).
Bumping of current safety manager. The ARB rejected Respondent's objection
that reinstatement of Complainant would bump the current safety manager, finding that
Respondent is large enough to find work for the displaced safety manager.
Complainant's lack of experience in "hot operations". Respondent
contended that reinstatement was not possible because Complainant lacks experience in
"hot operations." The ARB rejected this contention because when
Complainant was originally hired, hot operations were to begin in a short time thus,
Respondent obviously believed Complainant was competent to manage such operations.
The ARB noted Complainant's submission of evidence showing that he has endeavored
to stay current, and his statement of eagerness to take any required training. The ARB
also noted that it was Respondent's unlawful discharge that caused Complainant's lack of
experience.
Complainant's public appearances and participation in lawsuit. Respondent
contended that Complainant's public appearances in which he discussed chemical
weapons destruction, and his participation as an expert witness in a lawsuit against
Respondent, rendered his reinstatement impractical. The ARB found this contention
"very troubling," finding that Complainant's participation in a lawsuit
concerning the environmental dangers of Respondent's facility "is exactly the type
of activity that the environmental acts protect." Id. @ 11
(footnote omitted). The ARB also dismissed Respondent's contention that
Complainant's testimony and press contacts were unprotected personal attacks on the
character of Respondent's employees, although it conceded that reinstatement could be
properly denied "in situations where an employee's public criticism of the employer
and co-workers is highly personalized and inflammatory...." Id.
@ 11. The ARB found that Complainant's statements merely faulted Respondent's
facility's safety, which is his protected right under the environmental acts.
[Nuclear & Environmental Digest XVI B 4]
SINCE REINSTATEMENT IS MANDATORY, DISCUSSION OF FRONT PAY
ALTERNATIVE NOT NECESSARY
In Jones v. EG & G Defense Materials,
Inc.,1995-CAA-3 (ARB Sept.
29, 1998), the ALJ had made an alternative finding that in the event Respondent failed to
reinstate Complainant, it must pay front pay of $499,469. SeeJones v. EG & G
Defense Materials, Inc.,1995-CAA-3 (ALJ Aug. 1, 1997) The ARB, however, held that
because its reinstatement order is mandatory, front pay need not be discussed.
[N/E Digest XVI B 4]
FRONT PAY VERSUS REINSTATEMENT
In Creekmore v. ABB Power Systems Energy Services, Inc.,
93-ERA-24 (ALJ Dec. 1, 1997), the ALJ had, in an earlier decision, found that
reinstatement was not
appropriate under the factual scenario, and had recommended front pay instead.
The Deputy
Secretary (the Secretary having recused himself), however, had found that the
front pay award
was not appropriate because "the observed tension between the parties at
the hearing is not
sufficient to demonstrate the impossibility of a productive and amicable
working relationship in
this case." Creekmore v. ABB Power Systems Energy Services, Inc.,
93-ERA-24,
slip op. at 18 (Dep. Sec'y Feb. 14, 1996).
In the instant remand proceeding, Complainant presented additional evidence
and argument on
the reasonableness of reinstatement. In addition, the ALJ concluded that the
Deputy Secretary's
standard for evaluating the reinstatement/front pay issue had been overruled
in Michaud v.
B.S.P. Transport, ARB No. 96-198 (Jan. 6, 1997), which adopted a
reasonable person
standard to evaluate a complainant's decision to refuse to accept a bona fide
offer of
reinstatement. The ALJ reviewed the circumstances, concluded that no
reasonable person would
accept reinstatement, and indicated that under Michaud, it was
reasonable for
Complainant to receive front pay rather than reinstatement.
Nonetheless, the ALJ found that he was constrained to follow the Deputy
Secretary's ruling
rejecting the ALJ's earlier award of front pay and remanding the case for the
limited purpose of
determining back pay and other specified damages. The ALJ indicated that
another forum would
have to resolve whether the original recommendation of front pay was proper
under the new
Michaud reasonableness test.
[N/E Digest XVI B 4]
FRONT PAY; DETERMINATION OF START DATE WHERE COMPLAINANT NEEDS
THERAPY/EDUCATION TO RE-ENTER WORKFORCE
In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Nov. 26,
1997),
the ARB sought to clarify when front pay begins when Complainant alleges that
he was unable
to obtain counseling and education necessary to reenter the job market because
Respondent had
not paid the compensatory damage award.
The ARB began by observing that in antidiscrimination cases, back pay usually
ends and
front pay begins at the close of trial or at the time of the court's judgment,
although special
circumstances may dictate a different time.
The ARB noted, for example, that it had recently held in Michaud v. BSP
Transport,
Inc., 95-STA-29 (ARB Oct. 9, 1997), that a back pay award ended and the
front pay period
began at the time the respondent made a bona fide offer of
reinstatement. In
Michaud, the ARB had found that the unlawful discharge caused the
complainant's
major depression, and therefore the complainant reasonably declined the offer
of reinstatement,
and the declination did not cut off entitlement to back or front pay. The
complainant in
Michaud had already undergone eight months of therapy at the time of
the hearing, and
the therapist opined that additional therapy was needed to rehabilitate the
complainant for work.
The ARB stated that since the therapy was already underway at the time of the
hearing, it
determined that a two year rehabilitation period began at the close of the
hearing.
In Doyle, the ARB had found in its original decision on the
merits that
Complainant was entitled to five years of front pay based on evidence that it
would take
approximately that amount of time in therapy to make him employable.
Complainant argued
before the ARB that he had not yet begun the necessary therapy at the time of
the hearing, but
maintained that he had been prevented in this regard by poverty wrought by
Respondent's
discriminatory conduct.
The ARB held that to the extent that Respondent's failure to pay the monetary
damages
prevented Complainant from obtaining the necessary therapy and training, the
front pay period
would not be payable until the date the award was enforceable against
Respondent. The ARB
remanded for findings by the ALJ whether Complainant had engaged in any
therapy, education
or training, and if not, whether Complainant lacked the necessary funds.
If Complainant lacked the necessary funds, the back pay period would end, and
the front
pay period begin, upon issuance of a final, judicially reviewable ARB
decision. If, however, the
ALJ finds that Complainant has begun to obtain therapy and education/training,
or that
Complainant had the financial means to do so but did not, the back pay period
ended and the
front pay period began upon the issuance of the ARB's earlier decision on the
merits.
REMEDIES; REINSTATEMENT NOT FEASIBLE; FRONT PAY; HOW TO
DETERMINE LENGTH AND AMOUNT OF FRONT PAY AWARD
[N/E DIGEST XVI B 4]
In Doyle v. Hydro Nuclear
Services, 89-ERA-22 (ARB Sept. 6, 1996), reinstatement of
Complainant was not
practical due to a corporate reorganization, so Complainant was entitled to
front pay. The Board
rejected the ALJ's reasoning that five years of front pay was appropriate due
to Complainant's
age of forty years. Rather, the Board determined that five years of front pay
was reasonable
based on a psychologist's testimony indicating that Complainant was not likely
to find permanent
employment in the next five years. Five years was estimated to be the amount
of time necessary
to make Complainant employable again through psychotherapy, training and
education.
The Board held that front pay is calculated by determining the present value
of the future
earnings that a complainant would have earned, and then subtracting the
anticipated future
earnings. In addition, the Board held that it is necessary to determine the
present value of both
income streams using an appropriate discount rate. The Board did not suggest
an appropriate
discount rate, but requested that the parties to agree to such; if no
agreement can be reached, a
remand to the ALJ was anticipated.
[Editor's note: To my knowledge, this is the first decision in which either
the Secretary or
the Board adopted an ALJ's recommendation of front pay. See Boytin v.
Pennsylvania
Power & Light Co., 94-ERA-32 (Sec'y Oct. 20, 1995)(noting that Secretary
had not yet ruled
on the appropriateness of front pay).]
REINSTATEMENT; MERE FACT OF FIRING DOES NOT ESTABLISH
IMPOSSIBILITY OF NORMAL WORKING RELATIONSHIP
[N/E Digest XVI B 4]
The mere fact that the respondent fired a whistleblower does
not establish the impossibility of a normal working relationship
between the parties; reinstatement is the normal remedy for
whistleblowers. SeeCreekmore v. ABB Power Systems
Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10,
1996) (supplemental order regarding remand).
DAMAGES; FRONT PAY; ALJ'S OBSERVATIONS AT HEARING
[N/E Digest XVI B 4]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary discussed the caselaw concerning front pay
as a substitute for reinstatement where the trier of fact
finds that a productive and amicable working relationship
would be impossible because of animosity or tension between
the parties or reduction of the employer's workforce. The
Deputy Secretary found that front pay was not an appropriate
substitute in the instant case, notwithstanding the ALJ's
finding of manifest tension in the courtroom between the
Complainant and his former supervisors, colleagues, and
coworkers. The Deputy Secretary wrote that "observed
tension between the parties at the hearing is not sufficient
to demonstrate the impossibility of a productive and
amicable working relationship."
FRONT PAY WHERE REINSTATEMENT DOES NOT APPEAR TO BE IN THE
COMPLAINANT'S BEST INTERESTS [N/E Digest XVI B 4]
In Boytin v. Pennsylvania Power & Light
Co., 94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary noted
that he had not yet ruled on the appropriateness of an award of
front pay in whistleblower cases where reinstatement does not
appear to be in the complainant's best interests. He noted that
the issue in now pending before him in Creekmore v. ABB Power
Systems Energy Services, Inc., 93-ERA-24, in which the ALJ
recommended front pay.
REMEDIES; TRANSFER WHERE HOSTILE WORKING CONDITION LIKELY TO
PERSIST [N/E Digest XVI B 4]
In Boytin v. Pennsylvania Power and Light Co.,
94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary concluded that,
given the hostile working conditions and degree of animus felt at
the Respondent's Susequehana facility against the Complainant for
his protected activity, the Respondent should honor the
Complainant's request for a transfer to another facility within a
30 mile radius of the his home, with equivalent pay and
supervisory group responsibilities, if possible.
XVI B 4 Front pay
Recognizing that reestablishment of the employment relationship
is not always a feasible remedy in a discrimination case, the
Secretary nevertheless declined to award front pay where the
record indicated that a productive and amicable working
relationship would be possible were Complainant to return to
work. The Secretary did not decide whether section 210 of the
Energy Reorganization Act authorizes an award of front pay in
appropriate cases. McCuistion v. Tennessee Valley
Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).
XVI B 4 Front pay in lieu of reinstatement
In Simmons v. Florida Power Corp., 89-ERA-28 and 29
(ALJ Dec. 13, 1989) (supplemental decision ALJ Apr. 11, 1990),
dismissed on review by the Secretary based on settlement
agreement in decision consolidated with 88-ERA-28 and 30, Simmons
v. Fluor Constructors, Inc., 88-ERA-28 and 30 and 89-ERA-28
and 29 (Sec'y June 28, 1991), the ALJ found it appropriate to
award front pay in lieu of reinstatement based on Fifth and
Eleventh Circuit authority, despite the difficulty in predicting
the extend of future employment. See Goldstein v. Manhattan
Industries, Inc., 758 F.2d 1435 (11th Cir. 19xx), cert.
denied, 474 U.S. 1005 (1985); Hansard v. Pepsi-Cola
Metropolitan Bottling Co., 865 F.2d 1461 (5th Cir. 19xx),
cert. denied, 58 U.S.L.W. 3216 (1989); Nord v. United
States Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985). It
was noted that front pay may be particularly appropriate where
discord and antagonism between the parties would render
reinstatement ineffective as a make-whole remedy.
Goldstein, 758 F.2d at 1449.
Although the Secretary's Order in June 1988 required the employer
to reinstate Complainant, the Secretary no longer required
reinstatement where the evidence presented at the hearing on
remand revealed that Complainant had been hired only for the
duration of project from which he was unlawfully terminated.
Blackburn v. Metric Constructors, Inc., 86-ERA-4
(Sec'y Oct. 30, 1991).
XVI B 5 a Completion of job
In Beck v. Daniel Construction Co., 86-ERA-26
(Sec'y Aug. 3, 1993), the ALJ's order of reinstatement was
deleted by the Secretary where the Complainant's employment was
as a construction workers for a contractor hired during the
construction of the nuclear plant, which employment would have
ended with completion of the plant construction. The ALJ had
ordered that if the construction had been completed, Respondent
must employ Complainant in another position within his
capabilities and comparable in terms of pay, privileges and
benefits.
The Secretary has adopted for ERA cases the "long accepted
rule of remedies in labor law that the period of an employer's
liability ends when the employee's employment would have ended
for reasons independent of the violation found." See
Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct.
30, 1991), slip op. at 4. See also Francis v. Bogan, 86-
ERA-8 (Sec'y Apr. 1, 1988), slip op. at 6.
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the Deputy Secretary approved the following
remedies which were recommended by the ALJ: 1) reinstate and pay
Complainant as if he never had been laid-off; 2) cross-certify
Complainant in additional procedures missed because of layoff; 3)
cease all discrimination against Complainant; 4) retain
Complainant as long as Respondent employs others in that
capacity; and 5) pay Complainant back-pay, attorney fees, and
costs.
The Deputy Secretary, however, remanded the case to the ALJ to
determine whether the Complainant would have been laid-off any
way at a later date. If it can be shown that the Complainant
would have been laid-off anyway back-pay would be cut off at that
point, and Complainant would not be entitled to be retained until
all other inspectors have been laid off.
[N/E Digest XVI B 5 b]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL
DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY
Where Respondent had been sold and relocated, and its quality
assurance/quality control
(QA/QC) business effectively eliminated, all persons involved in the QA/QC
functions laid off,
and there was no substantially similar position for which Complainant is
qualified under the new
business structure, the ALJ recommended a holding that Respondent's liability
for back pay and
reinstatement terminated on the date Respondent's QA/QC was ended. In making
this
determination, the ALJ took into consideration whether QA/QC employees would
have had
transfer rights, and the Deputy Secretary's holding in a remand order that
Respondent's decision
to withdraw from the QA/QC business and to lay off staff was a legitimate
business decision.
Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24
(ALJ Dec. 1, 1997).
XVI B 5 b Complainant would have been laid off anyway
In Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Nov. 18, 1993), the Secretary had found in an earlier
decision that Complainant was a permanent employee prior to his
layoff -- but that finding did not resolve the issue of
entitlement to reinstatement. The Secretary adopted the ALJ's
determination on remand that Complainant would have been laid off
no later than May 30, 1987. The record indicated that
Complainant was already slated for layoff prior to engaging in
protected activity, and therefore it was not appropriate to order
Respondent to reinstate Complainant.
XVI B 5 b Reinstatement not required when credible
evidence establishes that
complainant was slated for a layoff
In Bechtel Construction Co. v. Secretary of Labor,
No. 94-4067 (11th Cir. Apr. 20, 1995)
(available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44),
the Secretary's finding that
reinstatement was not appropriate because there was credible
evidence that the Complainant was going
to be laid off at the end of an outage was affirmed, despite the
fact that the Secretary had rejected that
reason for the action taken in the liability portion of the case.
The Complainant was laid off from a temporary assignment for
discriminatory reasons unrelated to the anticipated lay off after
the outage.
In Atchison v. Brown & Root, Inc., 82-ERA-9
(Sec'y June 10, 1983), reversed on other grounds sub nom.,
Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984),
dismissed on remand (Sec'y Apr. 12, 1985), it was discovered that
Complainant had misrepresented his educational qualifications for
the job. The Secretary found that Respondent would have
discharged Complainant as soon as it discovered the
misrepresentation even if he had not engaged in protected
activity. The Secretary stated that "[f]iling a complaint
under the ERA, and even proof that the firing itself was
improperly motivated, should not insulate [Complainant] from
other, legitimate, management actions. Therefore, I do not think
it would be appropriate, under my authority to order affirmative
action to abate a violation found (29 C.F.R. 24.6(b)(2)), to
require reinstatement of an employee who repeatedly
misrepresented material facts about his background, or to order
back pay beyond the date of discovery of the misrepresen-
tation."
[Editor's note: It is not clear from either the Secretary or the
ALJ's decisions how Respondent discovered the misrepresentation,
but it was a couple months after Complainant was discharged. In
this case, Respondent apparently did not advance an "after
acquired evidence" defense for its burden of articulation,
but only in regard to the extent of damages.
On appeal, the Fifth Circuit ruled that Complainant's internal
complaints did not support an ERA employee protection complaint.
Although the Secretary dismissed Atchinson's complaint on remand,
in subsequent Fifth Circuit cases, the Secretary has declined to
acquiesce in Brown & Root.]
See Pope v. Transportation Service, Inc., 88-STA-8
(ALJ May 19, 1988), adopted (Sec'y Sept. 13, 1988) (STAA
case; complainant who is no longer qualified to work is not
entitled to reinstatement; complainant had lost his driver's
license).
Refusal of an unconditional offer of reinstatement to a
substantially equivalent position constitutes a breach of the
obligation to mitigate damages. Thus, in Williams v. TIW
Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June
24, 1992), the Complainant was entitled to back pay only until
the date he declined to return to work.
XVI B 5 e Reinstatement
Absent special circumstances, the employee's rejection of
employer's reinstatement offer ends his or her entitlement to
reinstatement. Blackburn v. Metric Constructors,
Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).
Where an administrative law judge ordered an employer to
reinstate a weld inspector on the ground that the employee had
been discharged for engaging in activity protected by the ERA in
violation of 42 USC § 5851(e), and his recommended Decision
and Order were adopted in their entirety by the Secretary of
Labor, and application for stay of the reinstatement order under
Rule 18, of the Federal Rules of Appellate Procedure "shall
ordinarily be made on the first instance to the agency."
Since the Secretary would certainly have denied a request for
stay of the order pending review by the Court of Appeals, it
would have been an exercise in futility to apply to the agency
for a stay, and therefore Rule 18 is satisfied. Nevertheless,
the court found that a stay was not warranted because the
employer failed to persuade the court that it would suffer
irreparable harm from being forced to continue one weld inspector
in its employ for a few months while its petition for review is
under consideration by the court. Commonwealth-Lord Joint
Venture v. Donovan, 724 F.2d 67 (7th Cir. 1983).
[Nuclear & Environmental Digest XVI B 6]
STAY PENDING JUDICIAL REVIEW; STANDARD
In Jones v. EG & G Defense Materials,
Inc., 1995-CAA-3 (ARB Dec. 24, 1998), the ARB held that three criteria
ordinarily are used when considering a request for a stay: the likelihood that the movant will
prevail on the merits, whether the movant will suffer irreparable injury in the absence of a stay,
and whether a stay is in the public interest. In the instant case, the ARB denied a stay, declining
to rule on a Constitutional argument proffered by Respondent, and finding that Respondent was
unlikely to prevail on the merits (observing that the ARB had affirmed the ALJ's recommended
order); finding that a stay would prolong the stigma and otherwise frustrate the public purpose of
restoring a successful complainant to the status enjoyed prior to the statutory violation; and
essentially finding that the alleged irreparable harm (such as causing another employee to be
bumped from his position) was not credible or was the fault of Respondent rather than
Complainant.
STAY OF PRELIMINARY ORDER OF RELIEF UNDER ERA
[N/E Digest XVI B 6; XVI C 1 d]
In McCafferty v. Centerior
Energy,
96-ERA-6 (ARB Oct. 16, 1996),
Respondents sought an order staying a preliminary order that Respondent comply
with the relief
ordered by the ALJ in his Recommended Decision and Order. The Board, noting
that this matter
was a bit unusual in that it involves a preliminary agency order rather than a
final order, applied
the four part test of State of Ohio ex rel. Celebrezze v. N.R.C., 812
F.2d 288, 290 (6th
Cir. 1987) in denying the motion. The Board found neither a strong or
substantial likelihood of
success by Respondent on review of the merits, no strong showing of
irreparable harm
("mere" financial loss of back pay not sufficient to establish
irreparable harm;
Complainants not shown to be judgment proof; since power plant is not
currently in outage,
unlikely that Complainants would be immediately reinstated), but a strong
public interest in
favor of preliminary orders in ERA cases.
XVI B 6 Request for stay of Order to reinstate and reimburse
back pay
In Guttman v. Passaic Valley Sewerage
Commissioners, 85-WPC-2 (Sec'y June 4, 1992), the
Respondent requested a stay of the Secretary's final order to
reinstate the Complainant and to pay him back pay with interest
pending review by the United States Court of Appeals for the
Third Circuit. The Secretary denied the request, holding that
neither a mere possibility of success on appeal nor certain
economic loss in the interim is sufficient to warrant a stay.
XVI B 6 Stay denied
In Goldstein v. Ebasco Constructors, Inc., 86-ERA-
36 (Sec'y Aug. 31, 1992) (order denying stay), the Respondent
moved for a stay of the Secretary's Decision and Order pending
review by the United States Court of Appeals. The Secretary
denied the stay were the motion raised no more than a possibility
that it will succeed on the merits and alleged harm only from the
financial costs and burden of employing the Complainant during
the pendency of the appeal. Neither the mere possibility of
success on appeal nor certain economic loss in the interim is
sufficient to warrant a stay. [Citations omitted] Other factors
warranting a stay, such as the prospect of harm to others which
could result from a stay and the public interest at stake, were
considered by the Secretary and found not to support a stay in
this matter.
XVI B 6 Need for stay from agency under FRAP 18
Employer moved for stay pending review of an order of the U.S.
DOL requiring employer to reinstate "contract employee"
on ground that employee had been discharged for engaging in
activity protected by ERA. The court held that Rule 18 of the
Federal Rules of Appellate Procedure requiring an application to
the agency for a stay before asking the appellate court for one
is flexible and is not intended to apply in a case where the
application would be an exercise in futility. However, the court
denied the stay in this case because employer failed to show that
it would suffer irreparable harm from being forced to continue
one weld inspector in its employ for a few months while its
petition for review is under consideration by that court.
Commonwealth-Lord Joint Venture v. Donovan, 724
F.2d 67, 68 (7th Cir. 1983) (holding that the standard for
deciding stays of administrative actions is same for stays in
district court actions as set forth in Adams v. Walker,
488 F.2d 1064 (7th Cir. 1973)).
Where the ERA whistleblower violation was committed by a former
employer who interfered with the
complainant's prospects of future employment, because of the
indirect employment relationship,
reinstatement is inappropriate. Artrip v. Ebasco Services,
Inc., 89-ERA-23 (Sec'y Mar. 21, 1995).
RELIEF; DENIED CONSIDERATION FOR PROMOTION [N/E Digest XVI B 7]
In Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), it was found that one Complainant
had been denied consideration for promotion to Senior Research
Scientist based on discriminatory retaliation for protected
activity by his employing University. The Secretary ordered the
University to establish a committee to consider that
Complainant's suitability for promotion under terms set by the
ALJ's recommended order. The ALJ had recommended that the
committee be comprised only of scientific peers not previously
involved in the DOL proceeding as witnesses or an underlying NRC
investigation. The committee was to be selected by an official
also without previous involvement in the matter. The ALJ
directed that if the University could not find a suitable
official to set up the committee, it shall arrange for the
selection to be made by a suitable official from another
university or scientific institution. SeeZinn v.
University of Missouri, 93-ERA-34 and 36, slip op. at 43
(ALJ May 23, 1994). The Secretary, consistent with the ALJ's
recommendation, ordered that if the committee found the
Complainant suitable for promotion, he should be promoted and
provided appropriate back pay with interest.
NONSELECTION; REMEDY [N/E Digest XVI B 7]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary found that the
Complainant had been discriminated against in violation of
Section 210 of the ERA when he was not selected for hire for
several positions. The Respondent was ordered to offer the
Complainant those positions or comparable positions, to pay back
pay from the date the Complainant would have started to the
actual appointment or Complainant's refusal of such offer, other
appropriate compensation (the case was remanded for a
determination by the ALJ), and costs and expenses.
XVI. B. 7. Job applicant
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to
promote Complainant to a position for which she was denied based
on reasons established to be pretext for discrimination. The
Secretary also ordered back pay from the date of denial of the
promotion.
XVI B 7 Job Applicant
In Doyle v. Hydro Nuclear Services, 89-ERA-22
(Sec'y Mar. 30, 1994), the Secretary held that Respondent
violated the ERA when it declined to hire a complainant who
refused to sign a release in a form authorizing Respondent to
conduct a background check on Complainant. Complainant had
previously engaged in whistleblowing. The release, in the
Secretary's view, had the purpose of releasing Respondent from a
claim that information had been provided or used to deny
Complainant employment because of protected activities under the
ERA -- Complainant would have waived his right to file a
complaint of illegal blacklisting.
In Doyle, the Secretary reviewed analogous cases
under the Fair Labor Standards Act and Title VII of the Civil
Rights Act of 1964. In addition, the Secretary concluded that
the release could not have been raised as a defense in an ERA
employee protection case because recognition of such a release
"could nullify the Act and Congressional intent to protect
public health and safety by prohibiting retaliation against those
who report potential safety hazards in the construction and
operation of nuclear power plants." Slip op. at 6.
The Secretary ordered Respondent to extend an offer of employment
to Complainant as a senior technician or similar comparable
position, and pay Complainant back pay, with interest, less
interim earnings from November 21, 1988 to the date of hire or
the date of the offer of employment is Complainant declines the
offer.
XVI. B. 7. Job applicant
In Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to
promote Complainant to a position for which she was denied based
on reasons established to be pretext for discrimination. The
Secretary also ordered back pay from the date of denial of the
promotion.
REINSTATEMENT; BENEFITS AND PRIVILEGES; INCLUSION OF SPECIFIC
ITEMS SUCH AS HOURS AND CHAIN OF COMMAND
[N/E Digest XVI B 8]
In Smith v. Littenberg, 92-ERA-52 (Sec'y Sept.
6, 1995), Complainant's reinstatement was to include all benefits
and privileges he formally enjoyed, including specifically
"the same hours of work and not being required to report in
any way to the Director of Nursing." Slip op. at 9.
[N/E Digest XVI B 9]
OUTAGE WORKERS; RIGHT TO "REINSTATEMENT"
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), several Complainants,
who were
contract outage workers, had been barred from work at Respondents facilities
due to unlawful
retaliation under the ERA. The ARB determined that whatever
"reinstatement"
rights the Complainants had, they had become moot with the passage of time
because the outages
during which Complainants were entitled to be placed had ended. The ARB held
that: "In
any event, Complainants do not have an enduring right to be placed at
[Respondent's] projects;
what they do have is a right, protected by order of this Board (in both the
Preliminary Order and
this Order), not to be barred from work at [Respondent's] nuclear projects in
retaliation for their
protected activity." The ARB held that there were now no positions to
which
Complainants were entitled to be "reinstated."
Complainants were made whole because denial of access flags were removed, they
received back
pay for the period they were unlawfully barred, and they are now eligible for
future placement at
Respondent's facilities.