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.
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr.
25, 1983).
XI.E.1. Relationship of evidence to legal
analysis
Evidence in a particular case may not always be so "finely
tuned and carefully orchestrated" as to fit neatly within
the analytical rules set forth in Dartey.
Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y
Jan. 6, 1992), citing Dartey v. Zack Co., 80-ERA-2 (Sec'y
Apr. 25, 1983), slip op. at 9.
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 held that the National Labor Relations Act, rather than
Title VII, controlled the allocation of the burden of proof in
the antidiscrimination provisions of the ERA. DeFord v.
Secretary of Labor, 700 F.2d 281, 285 (6th Cir.
1983).
The Court of Appeals' review of the Secretary's order is
controlled by the Administrative Procedure Act
under which an agency decision will be set aside if it is
unsupported by substantial evidence or is
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law. 5 U.S.C.
§§ 706(2)(A)-(E). In reviewing an agency's decision,
the Court of Appeals considers the
entire record before it, including the ALJ's recommendation and
any evidence that is contrary to the
agency's determination. While much deference is usually accorded
to an agency's expertise and
discretion when the agency adopts the findings of the ALJ, a
slightly different rule applies when the
administrative agency rejects the ALJ's findings. An agency
departing from the findings of the ALJ must
show that it gave attentive consideration to the ALJ's
conclusions. Such consideration may be found if
the agency decision reflects an awareness of the ALJ's findings
and gives reasons for reaching a
different conclusion with respect to those findings. [citations
omitted]
In the case before the court, the court concluded that the ALJ's
finding in regard to whether the
Respondent knew that the Complainant was cooperating with the
government was correct, and rejected
the Secretary's conclusion that the Complainant's actions were
too ambiguous and enigmatic to put the
company on notice of his cooperation with the government. During
a meeting with company officials,
the Complainant had refused to comment about a statement from a
contractor who related
Complainant's statement to him about company fed
heptachlor-contaminated chicken feed. When
asked who advised him not to comment, the Complainant produced a
business card of a government
agent.
The court noted that the presence or absence of retaliatory
motive is a legal conclusion and is provable
by circumstantial evidence even if there is testimony to the
contrary by witnesses who perceived lack of
such improper motive. It noted that the company was aware that
operations at its plant were being
investigated, and concluded that this information, coupled with
the business card incident, supported the
reasonable inference that the Complainant was cooperating with
the government in its investigation. The
court also found it significant that the Complainant was
suspended just hours after meeting with
company officers, and discharged eleven days later.
Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS
3715 (8th Cir. 1995) (case below 87-TSC-2).
WITNESSES; INTIMIDATION AS EVIDENCE OF HOSTILITY TOWARD
PROTECTED ACTIVITY
[N/E Digest XI E 3]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), Complainant contended that Respondent demonstrated its hostility toward protected
activity by basing its policy toward its employees appearing as witnesses in the case based on the
content of their testimony. The Board, however, found that this contention was not supported by
the record, which indicated that Respondent paid all employees that appeared at the hearing their
regular salary, but limited reimbursement for expenses to only those employees appearing as
witnesses for Respondent. The Board indicated, however, that its rejection of the contention
should not be considered indicative that it does not consider intimidation of witnesses to be a
serious matter.
EVIDENCE; RETALIATORY INTENT CASE REQUIRES FULL PRESENTATION OF
BROAD RANGE OF EVIDENCE
[N/E Digest X C; XI E 3]
In retaliatory intent cases that are based on circumstantial evidence, ... fair adjudication of
the complaint 'requires full presentation of a broad range of evidence that may prove, or
disprove,
retaliatory animus and its contribution to the adverse action taken.' Timmons v. Mattingly
Testing Servs., Case No. 95-ERA-40, ARB Dec., June 21, 1996, slip op. at 10-11 [footnote
omitted]; see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3, Ch. 16,
Evidence (1980)."
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION;
EVIDENCE OF DISCIPLINE OF OTHERS FOR SAME ACTIVITY IN PAST
[N/E Digest XI E 3]
In Hermanson v.
Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996),
the Board indicated that evidence that Respondent had fired other
employees in the past for the same failure to adhere to conduct
and safety rules that Complainant was fired for, supported a
finding that Respondent's decision to fire Complainant was for
nondiscriminatory reasons.
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
EVIDENCE; MOTIVE; CLOSE WORKING RELATIONSHIP BETWEEN
SUBORDINATES WHO EXHIBITED ANIMUS AND SUPERVISOR WHO MADE
ADVERSE
EMPLOYMENT DECISION [N/E Digest XI E 3]
The ALJ did not err in considering evidence of hostility by
several subordinates regarding the Complainant, even though they
did not have the responsibility for consideration of the
Complainant's promotion, where there was a close working
relationship between those subordinates and the decisionmaker,
and there was evidence of a pattern of hostility against the
Complainant. Zinn v. University of Missouri, 93-
ERA-34 and 36, slip op. at 12 (Sec'y Jan. 18, 1996).
CIRCUMSTANTIAL EVIDENCE [N/E Digest XI E 3]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary stated that [i]t
is well established that, in employee protection cases, [t]he
presence or absence of retaliatory motive is a legal conclusion
and is provable by circumstantial evidence even if there is
testimony to the contrary by witnesses who perceived lack of such
improper motive. " Ellis Fischel State Cancer Hospital
v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), quoted in
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1162 (9th Cir. 1984).
CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATORY INTENT [N/E Digest XI E 3]
The complainant need not have any specific knowledge that the
respondent's officials had an intent to discriminate against the
complainant; ERA employee protection cases may be based on
circumstantial evidence of discriminatory intent. Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34, slip op. at
10 n. 7 (Sec'y Oct. 23, 1995).
XI E 3 Evidence; ultimate burden of proof not
meet
In Kettl v. Gulf States Utilities Co., 92-ERA-33
(Sec'y May 31, 1995), the
Complainant asserted that he was denied an opportunity to be
enrolled in a training course in
retaliation for his communication with the NRC.
The Complainant failed to carry his ultimate burden of proof
where there was evidence that the
Complainant had previously been selected for the training (which
he did not successfully complete)
after making a safety-related complaint to the NRC, another
employee was selected for training who
had made both internal and external complaints, there was prior
tension between the Complainant and
management concerning the Complainant's secret tape recording of
a meeting, there was evidence
that the Respondent had used its normal procedure for selecting
employees for the training, the timing
the selection decision indicated that it was made before the
Complainant's most recent contact with the
NRC, and the Respondent presented credible evidence why the
Complainant was bypassed for the
training.
XI E 3 Evidence of retaliatory motive; relevance of
passing over of opportunities to
retaliate
In Collins v. Florida Power Corp., 91-ERA-47 and 49
(Sec'y May 15, 1995), the
Secretary indicated that it was relevant in regard to retaliatory
motive that the Respondent passed over
opportunities to terminate the Complainant's employment (such as
a merger of two units when it
"displaced" the Complainant's position but retained the
Complainant in an unbudgeted
position). Such evidenced that the Complainant was not considered
a problem employee before his
being fired for running an unauthorized business at work.
XI E 3 Respondent's clear written policy relevant in
regard to retaliatory motive
In Collins v. Florida Power Corp., 91-ERA-47 and 49
(Sec'y May 15, 1995), the
Secretary took into consideration in regard to retaliatory motive
that the Respondent had a clear written
policy that its computers could only be used for nonbusiness
purposes after regular business hours
and only for non-profit-making situations. In
Collins, the Complainant admitted using
his computer for a private business.
XI E 3 Failure to follow established channels and
unreasonable manner of voicing
concerns are relevant to respondent's motive
An employee's failure to follow established channels for voicing
concerns and an unreasonable manner
of complaining are relevant to the respondent's motivation and
may remove statutory protection.
Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18,
1995).
XI E 3 and 4 Motive evidence; rarity of "smoking
gun"
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), in
which the court noted that proof of an
illegal motive often requires inference from circumstance and
witness credibility -- rarely is there
"smoking gun" evidence of retaliation, citing
Lockhart v. Westinghouse Credit Corp.,
879 F.2d 43, 48 (3d Cir. 1989) (Title VII).
XI.E.3. Criticism of manner of presentation of safety
concern
In Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994), the Secretary indicated that if a
supervisor tells an employee that it was improper to go to the
NRC with a problem because the company would have resolved it,
that statement constitutes evidence of a retaliatory motive. In
Mandreger, the ALJ had concluded that such
statements were "legitimate statements of the employer's
view of how employees should more properly present safety
concerns. Such comments in the context of this case were not
wrongful acts of harassment."
XI.E.3. Circumstantial evidence
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
XI.E.3. Circumstantial evidence
In Saporito v. Florida Power & Light Co., 93-
ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of
Complainant's blacklisting complaint based on a telephone call to
a second nuclear plant that allegedly resulted in Complainant's
dismissal from the second plant, where Complainant was unable to
identify the caller or connect him or her to Respondent.
XI.E.3. Criticism of manner of presentation of safety
concern
In Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994), the Secretary indicated that if a
supervisor tells an employee that it was improper to go to the
NRC with a problem because the company would have resolved it,
that statement constitutes evidence of a retaliatory motive. In
Mandreger, the ALJ had concluded that such
statements were "legitimate statements of the employer's
view of how employees should more properly present safety
concerns. Such comments in the context of this case were not
wrongful acts of harassment."
XI.E.3. Use of circumstantial evidence
The presence or absence of retaliatory motive is a legal
conclusion and is provable by circumstantial evidence even if
there is testimony to the contrary by witnesses who perceived
lack of such improper motive. Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).
Evidence that the Respondent initially gave a false reason for
its decision to take adverse employment
action does not necessarily establish that the action was
retaliatory. Cowan v. Bechtel
Construction, Inc., 87-ERA-29 (Sec'y Mar. 24, 1995)
(citing
St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742, 2756 (1993)). In
Cowan, a rehiring situation, there was
credible testimony that the Complainant was simply a bad employee
and the worst electrician in his
crew; that although it was clear that the Complainant had a
reputation as a troublemaker or complainer
that ran to Labor Department, that reputation had nothing to do
with his performance rating; that there
was a performance benchmark for rehiring established prior to its
application to Complainant; the
persons who decided not to rehire had personal knowledge of
Complainant's poor performance.
[Nuclear & Environmental Digest XI E 4]
CREDIBILITY; BELIEF OF EMPLOYER IN REASON CITED
In determining whether an employer's explanation is worthy of credence, the fact finder
must determine whether the employer actually believed and relied on the reasons cited -- not
whether such bases are factually sound. Jarvis v.
Battelle Pacific NW Laboratory,1997-ERA-15 @ n.10 (ARB Aug. 27, 1998).
XI E 4 Shifting explanations may be evidence of
pretext
An employer's shifting explanations may be considered evidence of
pretext. Hobby v. Georgia Power Co., 90-ERA-30
(Sec'y Aug. 4, 1995), citing Bechtel Const. Co. v. Secretary
of Labor, 50 F.3d 926, 935 (11th Cir. 1995).
XI.E.4. Credibility determinations
In Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992), the Secretary noted that the ALJ had
fully explained why the complainant's version of the facts was
more credible than the version proffered by the respondent's
witnesses. In particular, the Secretary noted the ALJ's
observation that there was not documented prior history of
personnel problems with the complainant, but a very close time
sequence between the protected activity and the retaliation.
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
XI.E.4. Complainant's case based on assumptions and lack of
real evidence
In Colonello v. Dick Corp., 80-ERA-2 (ALJ Aug. 1,
1980), adopted (Sec'y Oct. 23, 1980), the ALJ credited the
testimony of Respondent's superintendent that Complainant was
laid off because of lack of work and a record of absenteeism.
The ALJ found that Complainant had based his case on assumptions,
and lacked any real proof that he had been laid off because of
safety complaints.
In Bartlik v. Tennessee Valley Authority, 88-ERA-15
(Sec'y Apr. 7, 1993), slip op. at 14, the Secretary held that,
unlike an Executive Order No. 11,246 disparate impact case,
discrimination in a ERA whistleblower case could not be inferred
from statistics. In Bartlik, the ALJ had inferred
discrimination based on a finding that the Respondent's regular
practice was to arrange for "staff augmentee" engineers
(such as the Complainant) to be hired by certain "managed
task" contractors -- the implication being that the
Complainant would have been contracted for to do this work in the
absence of discrimination. In part, the ALJ had relied on
evidence that 80% of the Respondent's engineers were "rolled
over" to managed task contractors after the Complainant had
left employment.
In Crosby v. United States Dept. of Labor, No.
93-70834 (9th Cir. Apr. 20, 1995)
(unpublished) (case below 85-TSC-2), the court noted that under
the circumstances of the appeal
"once an employment discrimination case has been tried, . .
. the only truly relevant question is
whether the plaintiff has met his ultimate burden of proving to
the trier of fact that he was the victim of
intentional discrimination." Slip op. at 2-3. See also
n.2, in which the court indicates that given
the ultimate determination that the Complainant was discharged
for proper reasons, whether a prima
facie case was established is not particularly important.
[Nuclear and Environmental Whistleblower Digest XI E 6]
COMPLAINANT'S BURDEN OF PROOF BY THE PREPONDERANCE OF THE EVIDENCE; ALJ ERRS IN RESOLVING DOUBTS IN FAVOR OF THE COMPLAINANT
In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ALJ erred when he resolved all doubts in favor of the Complainant. The ARB reiterated that "the preponderance of the evidence standard requires that the employee's evidence persuades the ALJ that his version of events is more likely true than the employer's version. Evidence meets the 'preponderance of the evidence' standard when it is more likely than not that a certain proposition is true. Masek v. The Cadle Co., ARB No. 97-069, ALJ No. 95-WPC-1, slip op. at 7 (ARB Apr. 28, 2000)." Slip op. at 27. The Board stated that "[i]f the ALJ is doubtful about whether to believe the employee's evidence, he must resolve the doubt against the employee, not against the employer." Slip op. at 27 (citation omitted).
COMPLAINANT'S BURDEN; NOT HIGHER WHEN RESPONDENT WAS ENGAGED
IN REDUCTION-IN-FORCE [N/E Digest XI E 6]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Secretary rejected the
Respondent's position that age discrimination decisions of the
Sixth Circuit subject a complainant to a higher standard of proof
when challenging a termination that occurs in the course of a
reduction in force. See LaGrant v. Gulf & Western Mfg.
Co., 748 F.2d 1087 (6th Cir. 1984) (ADEA) and its progeny.
The Secretary noted that the Sixth Circuit had clearly indicated
that the McDonnell Douglas test must be applied ad
hoc in each case, that the Complainant was not challenging a
termination but a nonselection for employment, and that reliance
on the line of ADEA cases was ill founded because age
discrimination is rarely based on the sort of animus motivating
other types of discrimination, citing EEOC v. Wyoming, 460
U.S. 226, 231 (1983).
XI E 6 "Whistleblower status" does
not lessen burden of proof
for Complainant
Merely because a Complainant prevails on an earlier ERA complaint
does not lessen his burden in a
subsequent complaint based on "whistleblower status."
The Secretary noted that "[t]he
ERA does not prohibit an employer from taking adverse action
against a whistleblower where ... that
action is not based on the protected activity. Lockert v.
United States Dept. of Labor, 867 F.2d
513, 519 (9th Cir. 1989)." Cowan v. Bechtel
Construction, Inc., 87-ERA-29 (Sec'y
Mar. 24, 1995).
XI E 6 Finding of pretext does not compel judgment
for complainant; however, a finding for complainant does not require
additional evidence
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 court found that substantial
evidence supported the Secretary's finding that the Respondent's
articulated reason for laying off the
Complainant was pretext. The Secretary also found that the
Complainant had satisfied the burden of
persuasion in establishing that the real reason for his being
laid off was his having engaged in protected
activity. The court noted that under
St. Mary's Honor Center
v. Hicks, 113 S. Ct. 2742, 125 L.
Ed. 2d 407 (1993), the rejection of the defendant's proffered
reason for taking the adverse action does
not compel judgment for the defendant. Nonetheless, the St.
Mary's Honor Center decision
includes the following:
The factfinder's disbelief of the reasons put forward by
the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the
prima facie case, suffice to show intentional
discrimination. Thus, rejection of the defendant's
proffered reasons, will permit the trier of fact to infer
the ultimate fact of intentional
discrimination, and the Court of Appeals was correct when it
noted that, upon such rejection,
"no additional proof of discrimination is
required...." Id. at , 113 S. Ct. at
2749 (footnote omitted) (quoting
Hicks v. St. Mary's
Honor Center, 970 F.2d 487, 493
(8th Cir.1992)).
The court found that the Secretary's decision was consistent with
this aspect of St. Mary's Honor
Center.
XI.E.6. Preponderance of evidence standard
In a whistleblower case the burden is on the complainant to prove
by a preponderance of the evidence that retaliation for protected
activity was a motivating factor in any adverse action.
Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y
July 26, 1988), slip op. at 2.
Under the employee protection provision of the CAA, protection is
not dependent on actually proving a violation.
Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992) (citing Yellow
Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th
Cir. 1992)).
EVIDENCE; RELEVANCY OF TECHNICAL MERIT OF COMPLAINANT'S SAFETY
CONCERN; LIMITATIONS ON ADMISSION OF RELEVANT AND PROBATIVE
EVIDENCE
[N/E Digest VII D 2; X G; XI E 7]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), Complainant argued that the ALJ committed error in the exclusion of evidence, on
relevancy grounds, proffered regarding the technical merit of Complainant's safety concerns.
The
Board agreed with Complainant that such evidence was relevant in regard to Respondent's
motive -- the more credence given to Complainant's theory within Respondent's facility and
elsewhere in the nuclear industry, the more likely it is that Respondent's management believed
Complainant's theory would cause tension and would have wanted to cause Complainant's
prompt departure. The Board ruled that with regard to the merits of Complainant's view of the
technical issues, "it is adequate, for purposes of providing evidence relevant to the issue of
retaliatory intent, to establish that others having expertise in this technological area found
[Complainant's] view to have merit. The question of who is actually correct regarding the
competing views about [the technological issue] is not germane to the retaliatory intent issue.
The ALJ may therefore find it appropriate to exclude from consideration 'unduly repetitious'
evidence concerning the technical merits of [Complainant's] view on [the technological issue] in
conducting the proceeding on remand, pursuant to 29 C.F.R. § 24.5(e)(1) and Section 7(c)
of the Administrative Procedure Act, 5 U.S.C. § 556(d)." Slip op. at 6 (citations
omitted).
The ALJ had expressed concern about unduly burdening the record. In a footnote, the
Board held that 29 C.F.R. § 24.5(e)(1) is controlling over the OALJ Rules of Practice and
Procedure rule of evidence at 29 C.F.R. § 18.403 in regard to the exclusion of relevant
evidence. Section 18.403 would permit exclusion of relevant evidence in certain circumstances
including "undue delay, waste of time, or needless presentation of cumulative
evidence." Section 24.5(e)(1), however, does not allow for exclusion of probative
evidence unless it is "unduly repetitious". The Board noted that this section "is
consistent with the nature of the evidence presented in a circumstantial evidence case of
retaliatory intent, some of which may appear to be of little probative value until the evidence is
considered as a whole...", and "is also in accord with Section 7(c) of the APA, 5
U.S.C. § 556(d)." Slip op. at 6 n.8.
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
XI E 7 Reasonableness of belief that issue implicated
safety
In Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y
Aug. 4, 1995), the Complainant expressed concerns that a vice-
president for nuclear operations would not be sufficiently under
the control of the power company's president. The Secretary held
that the Complainant's internal complaint -- whether the
Respondent's president was actually in control of Respondent's
nuclear power plants as prescribed by the NRC license --
implicated the safe operation of the plants, and was a reasonable
enough belief that his employer was violating the ERA to form the
basis for a retaliation claim irrespective of the correctness of
that belief.
XI E 7 Complainant only needs reasonable belief that
environmental law is being violated; nonetheless,
proof of no violation may be relevant to
motive
In Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y
Aug. 4, 1995), there was evidence that shortly before his
discharge, the Complainant had damaged a vehicle, had a
confrontation with managers about not clocking out for lunch, and
had been asked to make a choice between his employment for the
Respondent and another employer. The general manager admitted
that he had discussed the lack of a catalytic converter on a
vehicle the Complainant had been asked to work on, but denied
that the work was illegal. The general manager produced, post
hearing, a state environmental agency fact sheet supporting the
contention that the repair was legal.
The Secretary noted that even if the repair was legal, the
Complainant only needed a reasonable belief that his employer was
violating the law to present a cognizable whistleblower
complainant. Nonetheless, proof that the employer was not
violating the law does tend to demonstrate that the employer did
not seize upon poor performance as a pretext for retaliation.
Under the employee protection provision of the CAA, protection is
not dependent on the alleged violation comprising the only or
even the predominant subject of the complaint.
Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992) (citing Yellow
Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th
Cir. 1992)).
Where Complainant alleged that he was bypassed and/or denied
advancement opportunities in retaliation for bringing safety and
quality concerns to Respondent and/or the NRC, all of his com-
plaints for retaliation that allegedly occurred prior to thirty
days before the filing of his complaint were time barred since
each instance was a consummated immediate violation rather than a
continuing violation. The ALJ noted, however, that past non-
selection or withdrawals from management training programs is
relevant evidence to show past behavior of both the company and
Complainant. Kettl v. Gulf States Utilities Co.,
92-ERA-16 (ALJ Dec. 30, 1992).
XI.E.9. Reason for discharge not raised by respondent not
probative
In Pillow v. Bechtel Construction, Inc., 87-
ERA-35 (Sec'y July 19, 1993), the ALJ erred in finding that given
Complainant's "altercations" with a supervisor,
Respondent established that it would have laid off Complainant
even in the absence of his protected activity, where there was no
testimony that abusive or violent behavior toward that supervisor
was ground for discharge. Given that it was not mentioned by
Respondent as a reason for choosing Complainant for lay off, it
simply was not probative evidence.
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
A complainant need not show that he or she was treated
differently from other similarly situated employees to establish
a prima facie case of retaliation. Inclusion of such a
requirement among the elements of a claim would take no account
of the possibility that more than one person might be exposed to
the same type of discrimination. Gillilan v. Tennessee
Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28,
1995).
[N/E Digest XI E 11]
DISPARATE TREATMENT; PROOF OF SUCH TREATMENT NOT A NECESSARY
ELEMENT OF WHISTLEBLOWER CASE, BUT MAY BE RELEVANT TO MOTIVE
In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the
Board considered in regard to the issue of retaliatory intent the lack of proof that Complainant
was treated differently from other employees during a lay off. The Board noted that proof of
disparate treatment is not a necessary element of proof in a whistleblower case, but that the lack
of such evidence supported the ALJ's conclusion that Complainant's lay off was not retaliatory.
See also Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3, slip
op. at 12 (ARB May 28, 1997) (considering lack of disparate treatment in evaluating lawfulness
of discharge).
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
EVIDENCE; MOTIVE; SHOWING THAT OTHERS WHO OPPOSED
RESPONDENT'S ADMINISTRATIVE POLICIES SUFFERED NO ADVERSE
CONSEQUENCES [N/E Digest XI E 11]
In Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996), the Secretary noted the
Respondent's evidence that other staff had opposed administrative
policies and had taken leading roles in doing so, but had
suffered no adverse consequences as a result. The Secretary,
however, found that this evidence did not undermine the otherwise
well-supported conclusion that the Complainant was demoted, at
least in part, based on a retaliatory motive. Slip op. at 26-27.
Events occurring subsequent to a complainant's
termination
of employment may be pertinent; they could provide support
for a finding that retaliatory animus contributed to the
decision to take the adverse action. Misconduct in the
presentation of a respondent's case could both be a possible
violation of 18 U.S.C. § 1505, and give rise to the
discrediting of testimony or documentary evidence.
Remusat v. Bartlett Nuclear, Inc., 94-ERA-36
(Sec'y Feb. 26, 1996) (Secretary's holding, however, was
that the Complainant's evidence was insufficient to
establish retaliatory intent or witness intimidation).
EVIDENCE; EFFECT OF COMPLAINANT'S TERMINATION ON WORKPLACE
[N/E Digest XI E 12]
In Seater v. Southern California Edison
Co., 95-ERA-13 (ARB Sept.
27, 1996), the Board held that the ALJ erred in limiting, on relevancy grounds, the parties'
presentation of evidence in regard to Complainant's argument that the laboratory in he worked in
as a contractor and related training program suffered as a result of Complainant's termination
from the laboratory. The Board held that "[i]n the instant case, ...evidence of incidents
occurring or conditions developing in the ... laboratory and training program as a result of
[Complainant's] accelerated departure may provide valuable indicia of the supervisory mindset at
the pertinent time." The Board also held that the ALJ erred in excluding a document
pertaining to the qualifications of laboratory personnel.
EVIDENCE; SETTLEMENT OFFERS AS EVIDENCE OF INTENT
[N/E Digest XI E 12]
Where the Complainant attempted to establish retaliatory
intent by testimony that the Respondent had telephoned him
several times after the filing of the complainant offering
re-employment in exchange for a written statement admitting
"guilt" in the matter, the Secretary noted that
evidence of offers to settle a complaint are not admissible
for the purpose of establishing liability under 29 C.F.R.
§ 18.408. Remusat v. Bartlett Nuclear,
Inc., 94-ERA-36 (Sec'y Feb. 26, 1996) (noting in a
"but see" citation, however, 29 C.F.R.
§ 24.5(e)(1)).
PRIMA FACIE CASE; MAY BE BASED ON ALLEGATIONS FROM THE
COMPLAINTS AND SUPPORTING PAPERS ALONE; NO FINDINGS OF FACT
[N/E Digest XI E 13]
In Tyndall v. U.S. Environmental Protection
Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the
Board reviewed two matters in which the ALJs had recommended
summary dismissal of the complaints. The Board expressly made no
findings of fact, but made affirmative findings that the
Complainant had established a prima facie case.
CAUSATION; ADVERSE PERFORMANCE EVALUATION AND RETALIATORY
MOTIVE; ERROR TO BASE FINDING OF RETALIATION ON FINDING THAT
SUPERVISORS WERE TOO EMOTIONALLY INVOLVED IN DISPUTE TO RENDER
FAIR EVALUATION
[N/E Digest XI E 14]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
an ALJ concluded in regard to a performance evaluation given to
the Complainant during an "emotionally charged" period
resulting from related whistleblower litigation, that the
supervisors who prepared the evaluation could not be impartial in
supervising and rating the Complainant's job performance. Thus,
the ALJ found that the performance evaluation was suspect, and
that maintenance of that evaluation in the Complainant's
personnel file was unfair and prejudicial.
The Board found that the ALJ erred in focusing on this
concern -- that whether it was possible for the supervisors to
have neutral or impartial feeling toward the Complainant was
irrelevant. Rather, the relevant question is whether retaliatory
animus in fact infected the performance evaluation; if
not, there was no retaliation regardless of what the supervisors
felt about the Complainant.
The Board stated that "[t]he most useful measure of
whether a performance appraisal was given out of retaliatory
motive is whether it is fair and accurate description of an
employee's job performance." Slip op. at 33 (citations and
footnote omitted) The Board noted that "[o]f course, the
fact that an evaluation is not fair or accurate does not
automatically mean that it was motivated by animus, but it would
be evidence from which such animus appropriately could be
inferred...." Slip op. at 33 n.26. The Board then reviewed
the Complainant's testimony, the uncontroverted testimony of the
supervisors, and the ALJ's finding, and concluded that the
performance appraisal was fair and accurate and not motivated by
retaliatory animus.
[Nuclear & Environmental Digest XI E 14]
WORK REFUSAL
An employee's work refusal based on a reasonable good faith belief that working
conditions are unsafe is protected activity under the ERA employee protection provision;
however, a refusal to work loses its protection after the perceived hazard has been
investigated by responsible management officials and, if found safe, adequately explained to the
employee. SeePensyl v. Catalytic,
Inc., 1983-ERA-2, Slip op. at 6-7 (Sec'y Jan. 13, 1984).
In Eltzroth v. Amersham Medi-Physics,
Inc., 1997-ERA-31 (ARB Apr.
15, 1999), Complainant was hired as a Iodine I-125 Seeds Inspector a position which requires
the visual and physical inspection of radioactive pellets; while being interviewed for the job,
Complainant had been informed that the job entailed some radiation exposure. During training,
Complainant became concerned that the protective gloves used provided little or no protection
from radiation. A supervisor attempted to assuage Complainant's apprehension, but
Complainant was not convinced, and the next day a meeting was arranged with the radiation
safety officer who also explained that the exposure was lower than regulatory limits set by the
government. When the supervisor arrived later in the day, Complainant was continuing to refuse
to work with the I-125 seeds, and the supervisor asked whether Complainant had decided
whether he would perform the assigned job duties. Complainant responded that he would not
work unless arrangements were made "to reduce his exposure to 0." The supervisor
responded that Complainant's position was unreasonable, and again asked if Complainant would
perform the job; Complainant replied that he wanted to think about it overnight. After consulting
with other management officials, the supervisor informed Complainant that he was being
terminated from employment. A subsequent investigation by the Illinois Department of Nuclear
Safety revealed no employee radiation exposure in excess of regulatory and administrative limits.
The ARB found that Complainant's initial refusal to work was protected activity; however,
the refusal lost that protection because (1) Respondent made significant efforts to investigate and
to explain the safety of the work area to Complainant, which was sufficient to fulfill
Respondent's duty to respond to Complainant's good faith work refusal, and (2) Complainant's
demands for a "zero exposure" environment did not have a reasonable or good faith
basis and therefore did not constitute protected activity.
One member of the ARB dissented, concluding that Complainant should not be held to
have lost protected status. First, the dissent found that there was not convincing evidence that
Complainant had demanded "zero exposure," and that even if he had, in context it
"was little more than an after-the-fact expression of frustration resulting from his inability
to get straight answers from his employer to legitimate and straight-forward safety concerns that
had been raised in good faith." Second, the dissent found (as did the ALJ) that the record
established that Respondent did not adequately investigate and explain the safety of
Complainant's work area; the dissent found that the Secretarial decisions interpreting
Pensyl required more of Respondent in investigating Complainant's concerns, and
explaining the safety of the work area.
[Editor's note: Both the majority and dissent found support in the ALJ's
recommended decision. Eltzroth v. Amersham
Medi-Physics, Inc., 97-ERA-31 (ALJ
Oct. 2, 1997). Perhaps this is because the ALJ's recommended decision is based on slightly
different reasoning from either the ARB's majority or dissent -- essentially, that Complainant was
discharged for refusing to do the job he was hired to do and that there was no evidence of
discriminatory animus. Although the ALJ found earlier in the recommended decision that
Respondent had given an inadequate explanation to Complainant's questions partly because of an
inadequate investigation, he also found that Respondent had expressed appropriate concern, and
made attempts to directly addresses those concerns and assuage his fears. The lesson may be that
retaliatory animus by Respondent is not required in a work refusal case. Although the ARB's
majority and dissent viewed the evidence differently, they both carry the analytical underpinning
that, in a work refusal case, the reasonableness of Complainant's safety complaint must be
undermined in order to remove Respondent's liability for an adverse employment action based
on the work refusal. Thus, the ALJ's finding of lack of retaliatory animus does not even appear
to be relevant under the Pensyl analysis. Respondent's good faith, but inadequate,
investigation of, and explanations to, Complainant's questions do not permit it to escape
liability. Compare Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th
Cir. 1989) (Section 5851 provides that an employer may discharge an employee who has
engaged in protected conduct as long as the employer's decision to discharge is not motivated by
retaliatory animus and the employer has reasonable grounds for the discharge).]
[Nuclear and Environmental Digest XI E 14]
SHIFTING EXPLANATION MAY INDICATE PRETEXT
A shifting explanation for the adverse action often is an indication that the asserted
legitimate reasons are pretext. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 4 n.10 (ARB Feb. 9, 1999).
[N/E Digest XI E 14]
NONACTIONABLE COMPLAINTS; RELEVANCE OF EVIDENCE CONCERNING
MOTIVE
In Odom v. Anchor Lithkemko,
96-WPC-1 (ARB Oct. 10, 1997), the ARB found that some of Complainant's concerns were not
protected by environmental whistleblower provisions (e.g., occupational, racial, and
other nonenvironmental concerns about respirators, physical danger to children posed by empty
drums, and inclusion of an individual on a certain team). Nonetheless, the ARB noted that it
considered whether the evidence relating to those allegations showed any hostility toward
protected activity bearing on the question of Respondent's motivation. The Board noted also that
it considered earlier personnel actions, even though they were discrete incidents that occurred
outside the limitations period, because they formed in part a basis for Complainant's termination
from employment, and shed light on the true character of matters occurring within the limitations
period.
[N/E Digest XI E 14]
MOTIVATION; RESPONDENT'S ACTIONS INDICATE NO REASON TO FEAR
EXPOSURE OF WRONGDOING
In Odom v. Anchor Lithkemko,
96-WPC-1 (ARB Oct. 10, 1997), there was evidence that Respondent had started a project to
remove underground storage tanks and replace them with above ground storage tanks before
Complainant was hired, and that Respondent had hired an outside engineering firm to conduct
tank integrity testing and soil contamination assessments and to issue reports and plans on how
to proceed under applicable regulations and in consultation with state officials. Complainant
questioned supervisors about the handling of certain allegedly contaminated soil removed at
same time that the first tank was removed. Complainant, however, conceded that the tank was
removed under the supervision of consulting engineers with no evidence to indicate that the
engineers did not follow proper procedures for testing and handling the excavated soil. The
supervisors knew that the soil was not contaminated.
The ARB found that these facts showed the absence of motive -- no reason to fear exposure of
wrongdoing or otherwise feel the need to silence Complainant. The ARB cited with approval the
ALJ's observation that "...proof that management considered the concerns invalid may be
relevant to the question of motivation," especially in view of significant evidence that the
supervisor was concerned about safety issues.
[N/E Digest XI E 14]
MOTIVATION; PROFESSIONAL DISAGREEMENT
The ARB held in Odom v. Anchor
Lithkemko, 96-WPC-1 (ARB Oct. 10, 1997), that "[a] mere difference of
professional opinion, without more, does not prove retaliatory motives." Slip op. at 10.
[N/E Digest XI E 14]
DISPARATE TREATMENT; PROOF OF SUCH TREATMENT NOT A NECESSARY
ELEMENT OF WHISTLEBLOWER CASE, BUT MAY BE RELEVANT TO MOTIVE
In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the
Board considered in regard to the issue of retaliatory intent the lack of proof that Complainant
was treated differently from other employees during a lay off. The Board noted that proof of
disparate treatment is not a necessary element of proof in a whistleblower case, but that the lack
of such evidence supported the ALJ's conclusion that Complainant's lay off was not retaliatory.
See also Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3, slip
op. at 12 (ARB May 28, 1997) (considering lack of disparate treatment in evaluating lawfulness
of discharge).
[N/E Digest XI E 14]
MOTIVE; TOLERANCE OF INSUBORDINATION RELEVANT
In Acord v. Alyeska Pipeline Service Co., 95-TSC-4 (ARB June 30, 1997), the
Board found that Complainant's theory would have required believing an elaborate and expensive
charade was established to cover up a plot to discharge Complainant. The Board then noted that
if Respondents had sought a reason to fire Complainant to cover up retaliatory intent, they could
have used an incident in which Complainant exhibited insubordination by failing to show up for
a meeting to discuss gaps in his paperwork. The Board found that Respondent's toleration of this
incident "further negates any inference that their later actions in suspending [Complainant]
and discharging him were motivated by retaliation." Slip op. at 10-11 (footnote and
citations omitted).
EVIDENCE; LINE OF QUESTIONING ABOUT SUPERVISOR'S "BRAIN
CHEMISTRY"
[N/E Digest XI E 14]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996),
the Board held that the ALJ properly terminated the Complainant's
attempt to pursue a line of questioning about his supervisors'
"brain chemistry" in regard to Complainant's
performance evaluation. The Board noted that the best test of
whether the supervisors' testimony that they evaluated the
Complainant impartially was credible was the performance
evaluation itself, which was both accurate and fair. Slip op. at
30-31 n. 24.
[Editor's note: But seeTimmons v. Mattingly
Testing Services, 95-ERA-40, slip op. at 14 n.9 (ARB June
21, 1996) (evidence concerning actions taken by Respondent in
response to NRC investigation prior to termination of
Complainant's employment should be admitted into evidence because
it is relevant to mindset of Respondent's deciding officials]
EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF
RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE
WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and
XI E 14]
In Timmons v. Mattingly Testing Services, 95-
ERA-40 (ARB June 21, 1996), the Board reviewed principles
governing the evaluation of evidence of retaliatory intent in ERA
whistleblower cases.
The Board indicated that where a complainant's allegations of
retaliatory intent are founded on circumstantial evidence, the
factfinder must carefully evaluate all evidence pertaining to the
mindset of the employer and its agents regarding the protected
activity and the adverse action taken. There will seldom be
"eyewitness" testimony concerning an employer's mental
process. Fair adjudication of whistleblower complaints requires
"full presentation of a broad range of evidence that may
prove, or disprove, retaliatory animus and its contribution to
the adverse action taken." Slip op. at 11 (footnote
omitted).
The Board continued:
Antagonism toward activity that is protected under the ERA
may manifest itself in many ways, e.g., ridicule,
openly hostile actions or threatening statements, or, in the
case of a whistleblower who contacts the NRC, simply
questioning why the whistleblower did not pursue corrective
action through the usual internal channels.... In addition,
deliberate violations of NRC regulations suggest antagonism
toward the NRC regulatory scheme and thus may provide
support for an inference of retaliatory intent....
When disciplinary action, including termination from
employment, is involved, the past practice of the employer
in similar situations is relevant to determining whether
there has been disparate treatment, which may provide highly
probative evidence of retaliatory intent.[8]...
Furthermore, a complete understanding of the testimony of
the witnesses, including testimony regarding technical
procedures, is necessary for the drawing of pertinent
inferences and the resolution of conflicts in that
testimony.... In the instant case, a proper understanding
of the testimony of the witnesses concerning relevant
technical procedures requires at least a superficial
understanding of the fields of radiography and welding
inspection.
______
[8] A complainant is not required, however, to establish
disparate treatment in comparison to other employees, or
other whistleblowers, in order to establish retaliatory
intent....
Slip op. at 11-14 (citations omitted). The Board then held
that the ALJ erred in refusing, based on relevancy, to hear
testimony on technical aspects of the handling of radioactive
isotopes at the Respondent's facility, the technical aspects of
bridge girder inspection, quality standards and practices
prevailing at the Respondent's facility prior to the
Complainant's termination, and the Respondent's compliance or
non-compliance with NRC safety regulations prior to its
investigation by the NRC. The Board found that the ALJ did not
err in refusing to hear testimony concerning corrective measure
taken after the Complainant's termination, because that
evidence is not relevant to the mindset of Respondent's deciding
officials at the time of Complainant's termination of employment.
On the other hand, "[e]vidence of related action, corrective
or otherwise, taken by [the Respondent] following initiation of
the NRC investigation but prior to [the Complainant's]
termination is relevant to the issue of the mindset of
[Respondent's] deciding officials at the pertinent time...."
Slip op. at 14 n.9.
[Editor's note: But seeVarnadore v. Oak Ridge
National Laboratory, 92-CAA 2 and 5, 93-CAA-1 and 3
(ARB June 14, 1996)(ALJ properly terminated line of
questioning about supervisor's "brain chemistry)]
The Board also found that the ALJ erred in refusing to admit,
on relevancy grounds, two NRC investigative reports -- this
evidence was pertinent to the question of retaliatory animus
among Respondent's managers, as the NRC reports documented
knowing, deliberate violations of NRC regulations by Respondent's
management. The Board noted that the ALJ was correct that a
complainant is not required to establish an actual violation of
NRC regulations, but indicated that he erred in refusing the
reports because they could be relevant to retaliatory intent.
