U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, NJ 08104
Date: February 9, 1998
Case Nos. 94-TSC-00003
94-TSC-00004
IN THE MATTER OF
MARRITA M. LEVEILLE
and
DANIEL J. LEVEILLE
Complainants
v.
NEW YORK AIR NATIONAL GUARD
Respondent
Before: Robert D. Kaplan
Administrative Law Judge
RECOMMENDED DECISION AND ORDER (UPON REMAND BY THE SECRETARY OF LABOR)
1. Procedural History
This case arises from a joint complaint filed with the Department of Labor
on January 6, 1994 by Mrs. Marrita M. Leveille and Mr. Daniel J. Leveille against their employer,
the New York Air National Guard (Respondent), under the employee protection provisions of six
1 The statutes are: Toxic Substances
Control Act, 15 U.S.C. § 2622 (1988); Safe Drinking Water Act, 42 U.S.C. § 300j-9
(i) (1988); Clean Air Act, 42 U.S.C. §7622 (1988); Solid Waste Disposal Act, 42 U.S.C.
§ 6971 (1988); Water Pollution Control Act or Clean Water Act, 33 U.S.C. §1367
(1988); and Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9610 (1988).
2 The following abbreviations are
used herein: CX denotes Complainant's exhibit; RX denotes Respondent's exhibit; TR denotes the
transcript of the hearing before Judge Williams on July 18-19, 1994.
3 As it appears that Respondent
already has removed all adverse references pertaining to Mrs. Leveille from its records and has
requested that OPM also expunge its records, it is unclear what more Respondent can be ordered to
do.
4 Complainants also requested that
the record be re-opened for the admission of evidence regarding their allegation that Respondent has
not complied with the Secretary's order of affirmative relief because of records maintained by OPM.
I granted this request in my Post-Remand Orders Nos.12 and 13, referred to above, allowing the
submission of evidence regarding expungement of adverse statements made to OPM. This evidence
is discussed below at pp. 8-9.
5 Complainant testified that,
"Documented Reference Check is an agency that will verify any negative or derogatory
information that a previous employer is providing about you to other potential employers." TR
90. See CX 39, 40.
6 This finding is not dependent on my
subsequent determination that adverse material remains in Complainant's OPM records. On the
other hand, I conclude that these damages are not increased by the latter finding.
7 A copy of the document, a
"Standard Form 127," is attached to Katz's statement. Complainant suggests that the
mere existence of this form will alert employers to "dig" further and to discover the
adverse information on OPM's permanent file.
8 Therefore, it can be inferred that the
Secretary was well aware that there could be difficulty in obtaining total expungement of the adverse
comments from OPM records. However, as OPM is not a party, I have no authority to direct OPM
to take any action.
9 Complainant has offered no discrete
evidence supporting her contention that she has suffered a loss of "earning capacity".
However, the concept of damage to "professional reputation" seems simply another way
of describing injury to earning capacity. I view these concepts to be almost interchangeable.