ARB CASE NOS. 02-056, 02-059
ALJ CASE NO. 01-CAA-18
DATE: November 28, 2003
In the Matter of:
DAVID W. PICKETT,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent: Maureen H. Dunn, Esq., Thomas F. Fine, Esq., Linda J. Sales-Brent, Esq., Tennessee Valley Authority, Knoxville, Tennessee
FINAL DECISION AND ORDER
David W. Pickett filed a complaint against his former employer, the Tennessee Valley Authority (TVA), under the employee protection provisions of the Clean Air Act (CAA), 42 U.S.C. § 7622 (1995), Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) (2003), Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622 (1998), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610 (1995), Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1995) and the Department of Labor's (DOL) implementing regulations set out at 29 C.F.R. Part 24 (2002). Pickett alleges that TVA blacklisted him in retaliation for a previous whistle-blower complaint he filed in 1999.1
TR at 38-39. In this exchange, Green indicated that the mere fact that Yates came to the shop and asked to see Pickett's payroll records would have motivated Green not to re-employ Pickett if he didn't know him personally. Clearly, Yates' request for the employment information identified in OWCP's letter would not constitute blacklisting. Similarly, the fact that Yates came to Green's place of business is unrelated to any form of blacklisting. Further, Green testified that he would rehire Pickett whenever there was enough work, TR at 42, thus supporting TVA's argument that Green's testimony in this regard was purely speculative. Therefore, in considering whether blacklisting occurred, we put little weight on Green's testimony that after Yates' visit he would have been unwilling to rehire Pickett if he had not known him personally.
Even if Yates thought Pickett was malingering, and conveyed this impression to Green, the evidence linking Yates' personal opinion to preclusion of re-employment by Green—"I wouldn't hire him"—is speculative at best, because Green was well aware of Pickett's capabilities and admitted he would hire him back. Further, since early in their conversation, Green told Yates that he was Pickett's friend and didn't want to get him in trouble, it appears unlikely that Yates expected Green not to re-employ Pickett as a consequence of his remarks.14 TR at 33, 458.
1See Pickett v. Tennessee Valley Authority, ARB No. 00-076, ALJ No. 00-CAA-9 (ARB Apr. 23, 2003) (dismissing the complaint as untimely filed).
2 The following abbreviations are used herein: Claimant's Exhibit, CX; Respondent's Exhibit, RX; hearing transcript, TR; Recommended Decision and Order, R. D. & O.; and Administrative Law Judge's Exhibit, ALJX.
3 Pickett filed a Protective Cross-Petition for Review, in which he asked that the ARB review "any and all issues on which he did not fully prevail or receive the full remedies requested." ARB Case No. 02-059. He also filed a Petition for Review of the award of attorney's fees. Because of our disposition of this case, there is no need for us to address these petitions. Therefore, we will not review the ALJ's findings regarding (1) Pickett's failure to prove a prior pattern of conduct by TVA, R. D. & O. at 5-8; (2) Robert E. Tyndall's statement, R. D. & O. at 27-29; (3) TVA's ex parte submission to OSHA after Pickett filed his complaint, R. D. & O. at 29-32; (4) TVA's internal investigation of Yates' conduct, R. D. & O. at 32-34; and (5) any of the recommended remedies, including attorney's fees, R. D. & O. at 36-52.
4 OWCP terminated Pickett's disability benefits again on July 14, 2001, based on new medical evidence. Respondent's Motion for Summary Judgment, Exhibit 4.
5 Section 8115(a) of the FECA provides that the wage-earning capacity of an employee is determined by his actual earnings if they fairly and reasonably represent the employee's ability to earn wages. 5 U.S.C. § 8115(a). Typically, an injured employee's wage-earning capacity declines, compared with the earnings of his pre-injury job. OWCP's determination of wage-earning capacity governs the amount of disability benefits the employee receives. See In the Matter of Dan C. Boechler and Department of the Interior, Docket No. 01-1621 (ECAB May 24, 2002).
6 Yates had interviewed Pickett in December 1992 regarding his disability claim. CX 1-5D. Yates testified that the case was closed shortly after he made his report on Pickett's activities at the time. TR at 415-18, 442-49; CX 1-5E.
7 The ALJ dismissed OWCP, TVA's OIG, Yates, and Crowell as parties, finding that only TVA was an employer as defined by the environmental acts. R. D. & O. at 5.
8 Pickett stated in his complaint that TVA had harassed him by sending Yates to interview his former employer. He alleged that Yates made "illegal blacklisting remarks" to Green, violating Pickett's whistle-blower and privacy rights by stating that Pickett was a malingerer and that TVA doctors had determined that Pickett was not hurt and could go back to work. Pickett also accused Yates of making fun of him for living with his parents at age 36 and violating his right to confidentiality by revealing that he was receiving full disability and that TVA had recently cut him a check for $50,000.00. Pickett alleged that Yates repeatedly demanded to see Green's payroll and computer records, and improperly claimed that OWCP had sent him to investigate. Also, he alleged that Yates asked how much money Pickett made and told Green about specific details of Pickett's case, as well as activities inconsistent with his disability claim, such as his playing softball. The complaint stated that Yates repeatedly threatened Green with a subpoena for his business records and opined that Pickett's case would not look good in front of a jury, which would find him to be a malingerer. According to the complaint, Yates also told Green that his back hurt but he went to work every day and asked Green how he would feel if he were paying full disability to an employee who went to work for someone else. Finally, Pickett accused Yates of obsessing on the issue of Pickett living at home. ALJX 2.
9 If the complainant establishes that the protected activity was a motivating factor for the adverse action by the respondent, it may nonetheless avoid liability by showing by a preponderance of the evidence that it would have taken the adverse action in any event. Mourfield v. Frederick Plaas & Plaas, Inc., ARB Nos. 00-055 and 00-056, ALJ No. 1999-CAA-13, slip op. at 4 (ARB Dec. 6, 2002).
10 The ALJ discussed the evidence in terms of Pickett's burden to establish a primafacie case and TVA's failure to rebut it. Once a case is tried by the ALJ, the issue is whether the complainant sustained his burden of proof by a preponderance of the evidence that the respondent discriminated because of protected activity. USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253); Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, slip op. at 11 (Sec'y Feb. 15, 1995) (Secretary's order enforced sub nom, Carroll v. United States Dep't of Labor, 78 F.3d 352 (8th Cir. 1996)). Thus, after a whistleblower casehas been fully tried on the merits, the ALJ does not determine whether a prima facieshowing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the employer retaliated against him because of protected activity. We continue to discourage the unnecessary discussion of whether a whistleblower has established a prima facie case when a case has been fully tried. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 3 n.7 (ARB May 30, 2003).
11 Pickett alleged in his complaint that Yates told Green Pickett's case would not look good in front of a jury, which would find him to be a malingerer. He also alleged that Yates said that OWCP sent him to investigate and not TVA. ALJX 2. In a written declaration, Green alleged that Yates discussed Pickett's case in front of Green's secretary, charged Pickett with being "a malingerer," and "repeatedly threatened" Green with a subpoena for his records. Green added that Yates made no appointment and interviewed him while he had "customers waiting." ALJX 24. Neither the record nor the hearing transcript corroborates or supports any of these allegations. Green did not testify about the alleged jury comment or Yates' actual use of the term malingering. Nor did he indicate at the hearing that his secretary was present during the interview or that he had customers waiting. He did testify, however, that Yates showed him his TVA badge and asked the same questions that OWCP had asked in its letter to him. And Green stated twice at the hearing that he did not feel threatened by Yates' remarks about a subpoena. See TR at 29, 35-38, 44, 457, 479.
12 Green stated in his September 14, 2001 declaration that Yates called Pickett a malingerer, that Yates' interview was "intimidating," and that, based on "the strength" of Yates' feelings, "he intended to hurt" Pickett's reputation. ALJX 24. At the hearing, Green did not testify directly about the alleged accusation of malingering. Green stated that he "could tell" Yates wasn't "real fond of" Pickett, but did not explain how or why. TR at 33. Green added that he took Yates' questions "personal," TR at 38, but admitted that Yates never "threatened me personally," TR at 44. We note that Yates' alleged remark that Pickett's doctors said he couldn't work and TVA's doctors said the opposite was factually correct. Although it may have suggested to Green an innuendo that Pickett was malingering, it does not corroborate the statement Green made in his declaration, that Yates called Pickett a malingerer outright.
13 In response to a later question, Green stated: "If I didn't know David, I would come away thinking terrible of him." TR at 49.
14 Yates testified that he knew that Pickett and Green were "extremely good friends" and had shared an apartment at one time. "I wasn't about to sit there and say things about [Pickett] that were not appropriate in front of his best friend." RX 5; TR at 466.
15 In fact, we can find no motivation for Yates to suggest to Green that he not hire Pickett. Under FECA, TVA is charged with the amount of Pickett's disability compensation. If Pickett were to be hired by Green, TVA would benefit because Pickett's earnings could be offset against the disability benefits TVA currently pays.
16 The OIG manual provides the following guidelines for special agents conducting an interview:
A well-planned interrogatory is the key to a successful interview. The [special agent] needs to carefully formulate questions to be asked during the interview and be prepared for the person's responses. After properly identifying yourself and showing your credentials, the agent should try to put the person being interviewed at ease by asking background questions first before addressing more important questions. The questions should be simple, short, understandable, and direct, and the agent should maintain absolute control of the interview and should lead or direct the discussion. Private and sensitive matters, such as financial matters, drinking or drug habits, and sexual matters are discussed only to the extent that they directly relate to the matter under investigation. CX 9.
17 Because of our determination that Pickett has not established any adverse action of blacklisting, even crediting Green's evidence, it is not necessary for us to address the ALJ's credibility findings. However, we note that the evidence cited by the ALJ for finding Yates' testimony not credible depends on drawing unwarranted inferences.
For example, the ALJ faulted Yates because he testified that he did not know what a protected activity was. R. D. & O. at 30. The transcript reveals that Yates' expertise was in workers' compensation cases and that he had never worked or been trained in whistleblower cases. TR at 428, 541-50. Thus, it is understandable that he would not be able to define this term of art, even though he was aware of Pickett's whistleblower complaint when he attended the 1999 meeting with TVA's attorneys. Further, his role there was limited to explaining his investigation of Pickett's disability claim in 1992.
Similarly, the ALJ found Yates less than candid because he testified that he did not remember the "exact details" of Pickett's disability claim or whether he had won his appeal of the termination of his benefits. R. D. & O. at 30. Yates, testifying 11 years after his 1992 investigation, stated that opposing counsel's description of Pickett's work injury (which occurred in 1988) sounded "fairly close." TR at 108-09. He stated that he didn't recall whether he knew in November 2000 that Pickett had won his appeal because he was working on his active cases and Pickett's disability case investigation had been closed in early 1993. TR at 73-74, 443-44. It is reasonable that in 2001 Yates would not recall details of a case closed in 1993, especially in view of the fact that he had handled 70 to 100 cases since that time. TR at 440. Moreover, he would not have had any cause to follow Pickett's case since the investigation was closed.
18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Security and the Prevention of Fraud and Abuse, Chapter 2-402.6 (April 1995).
23 Usually, disability cases that are investigated involve individuals who are receiving benefits and are also working or engaging in other activities inconsistent with being disabled. TR at 460. Under FECA, such individuals may face termination of benefits and criminal charges. See generally, 5 U.S.C. §§ 8106(b), 8148 (1993).
24 As Hamilton explained, Yates was the logical choice because he was one of three agents assigned to workers' compensation cases, he had received the request from OWCP's Branham, and he had worked on the previous Pickett case, which was closed in January 1993. TR at 416-18.
25 [Editor's note: no text appears at footnote 25 in the original slip opinion]
1) Yates and TVA knew that Pickett had filed a complaint in 1999;
2) Yates also knew that Pickett had made charges against him in that complaint;
3) Pickett told Yates of TVA's environmental violations during the 1992 interview regarding his disability compensation;
4) Neither Yates nor TVA investigated these charges;
5) Yates attended a 1999 meeting on Pickett's complaint and explained the investigation he conducted relating to Pickett's eligibility for benefits due to disability;
6) TVA failed to investigate fully Pickett's charges against Yates in his 2001 complaint;
7) The OWCP inquiry was referred to Yates because of the pending 1999 complaint; and
8) Yates' 2001 investigation was an opportunity to retaliate against Pickett.
Although the ALJ stated that Pickett made allegations in the 1999 complaint against Yates personally, he did not identify the specific charges purportedly made. R. D. & O. at 35-36.
27 George T. Prosser was TVA's manager of fraud investigations in the OIG and Donald K. Drumm was the manager at Widows Creek Fossil Plant, where Pickett worked. CX1-5B, 5C. The 1999 complaint also accused Drumm of "bearing animus" against Pickett for years and stated that Prosser had fabricated an anonymous complaint to support an "illegal" investigation of Pickett's disability case. Both managers were charged with conspiring to have Pickett's disability compensation terminated. RX 8; see n. 1.
28 The September 10, 1991 memorandum by Drumm stated: "Mr. Pickett has successfully sidestepped the return to work issue for three years by manipulating both OWCP and TVA. His apparent success in abusing the compensation system should be questioned and corrected." CX 1-1. Prosser stated in an October 18, 1991 memo referring to an anonymous call to the OIG Hotline alleging that Pickett's activities were inconsistent with those of a disabled person: "Fraud on Pickett's part did not appear to be a factor, but OWCP handled the case poorly." CX 1-5C.
29 Pickett alleges that he told Yates in 1992 of his whistleblowing activities at Widows Creek and that Yates had done nothing about investigating his complaints about unsafe conditions. TR at 157-58. Yates did not recall receiving this information. TR at 506-08. Even if Pickett had conveyed his concerns about the plant, Yates had no obligation or authority to investigate because his assigned responsibilities were related to disability compensation investigations. TR at 107, 418. Therefore, no adverse inferences flow from his failure to investigate Pickett's charges of unsafe working conditions at TVA's Widows Creek plant in 1992.