Before: KEARSE, WALKER, and HEANEY,[*]Circuit Judges.
Appeal from decision of the Secretary of Labor, Robert
Reich, holding that the
petitioner had discriminated against the intervenor, in violation
of Section
210(a) of the Energy Reorganization Act of 1974, 42 U.S.C.
[[section]] 5851(b) (1988).
The Secretary's decision is affirmed.
CHARLES C. THEBAUD, JR., Morgan, Lewis & Bockius,
Washington, D.C.,
forPetitioner.
ANNE PAYNE FUGETT, Attorney, U.S. Department of Labor,
Washington, D.C.
(Thomas S. Williamson, Jr., Solicitor of Labor; Gail V. Coleman,
Deputy
Associate Solicitor; and William J. Stone, Counsel for Appellate
Litigation,
U.S. Department of Labor, Washington, D.C., of counsel)
forRespondent.
FREDERICK P. AMORE, Branford, Connecticut, forIntervenor.
HEANEY, SeniorCircuitJudge:
The Secretary of Labor held that an employer's proffering of
a settlement
agreement containing provisions that would have restricted its
employee's
access to judicial and administrative agencies violated Section
210 of the
Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. [[section]]
5851(a)
(1988). The employer appeals the decision claiming that former
employees are
not covered by the ERA, proffering a settlement agreement does
not constitute
adverse action, and the statute of limitations period had
expired. We
affirm.
BACKGROUND
John Delcore was employed by W. J. Barney Corporation
("Barney") as a general
electrical foreman from July 1985 until September 1987. Delcore
supervised
subcontracting work at the Millstone Nuclear Power Plant, which
is operated by
the Connecticut Light & Power Company ("CL&P"). On
September 14, 1987,
Delcore was terminated by Barney. Shortly thereafter, Delcore
complained to
the resident inspector of the Nuclear Regulatory Commission
("NRC") raising
various allegations.
On September 30, 1988, Delcore commenced an action in state
court against
Barney and CL&P alleging violation of the Connecticut
whistle-blower
statute, violation of his free speech rights, wrongful
termination of his
employment in violation of public policy, tortious interference
with his
employment contract, and defamation. The defendants removed the
action to the
United States District Court for the District of Connecticut
under diversity
jurisdiction.
In December 1988, CL&P and Delcore entered into
settlement negotiations.
As a result of these negotiations, on February 8, 1989, counsel
for CL&P
sent a written settlement proposal to Delcore's attorney. The
proposed
settlement included provisions that would have restricted
Delcore's ability to
provide regulatory agencies with information regarding either
CL&P or
Barney. On February 9, 1989, Delcore's attorney spoke with
CL&P's counsel
by telephone and indicated that he had some concerns with respect
to the
agreement's provisions.[1]
7) Mr. Delcore agrees that he will not voluntarily appear as a
witness or a
party in any judicial or administrative proceeding in which
CL&P or Barney
or any related companies or organization is a party in interest
and that he
will not do anything to encourage, suggest or otherwise induce
any other party,
attorney, administrative agency, or administrative or judicial
tribunal to
contact, involve, or call Mr. Delcore as a witness or to join Mr.
Delcore as a
party in such proceeding. Mr. Delcore further agrees that if
served with
compulsory process seeking to compel his appearance or joinder in
such a
proceeding, he will immediately notify the undersigned
representative of
CL&P and Barney, or their successors, in writing and
thereafter take all
reasonable steps, including such reasonable steps as may be
suggested by the
representatives of CL&P and Barney, to resist such
compulsory
process. Notwithstanding any other provisions of this Agreement,
activities
otherwise proscribed in the preceding language of this paragraph
shall not be
deemed to constitute a breach of this Agreement if such
activities arise out
of, relate to, and concern only events that occur after the date
on which this
Agreement is executed by all parties and any contact, activity,
appearance, or
testimony is strictly confined to events occurring after the
execution of this
Agreement by all parties.
8) Nothing in this Agreement shall be construed to prohibit Mr.
Delcore from
personally communicating to the United States Nuclear Regulatory
Commission
("NRC"), and any person who, at the time of such communication,
is a member of
the Staff of, and is acting on behalf of, the NRC, any
information acquired by
him during his employment at the Millstone Station, which relates
to any matter
at the Millstone Station that Mr. Delcore in good faith believes
could
adversely affect the public health and safety, so long as the
purpose of such
communication is to provide the NRC with information necessary to
the discharge
of its duties to ensure that nuclear power plants are constructed
and operated
safely. In the event that Mr. Delcore deems it necessary to make
such
communications to the NRC, he shall refrain from doing so in such
a manner
calculated or foreseeably likely to have the effect of bringing
that fact or
substance of such communications to the attention of any party
other than the
NRC, except that Mr. Delcore shall not be responsible for
disclosures made by
the NRC itself unless he affirmatively induces the making of such
disclosures.
On March 28, 1989, Delcores attorney wrote to CL&P's
counsel
expressing his concern that the proposed settlement agreement was
overbroad and
overly restrictive. He attached a marked-up version of the
proposed settlement
agreement indicating which provisions Delcore found problematic.
Among the
proposed deletions were the provisions that would have restricted
Delcore's
ability to appear as a witness or a party in any judicial or
administrative
proceeding in which CL&P or Barney was a party. On April 25,
1989,
CL&P terminated negotiations, informing Delcore that further
settlement
negotiations would not prove fruitful.
On May 11, 1989, Delcore filed a complaint with the U.S.
Department of Labor.
In the complaint, Delcore asserted that as a result of his
complaints to the
NRC and his suit against Barney and CL&P for wrongful
termination, CL&P
and Barney had offered him a settlement containing illegal
provisions.
Specifically, Delcore complained that the agreement violated
Section 210 of the
ERA because it would have illegally restricted his constitutional
rights of
free speech and his right to freely report or testify about
safety violations
or other acts of misconduct by CL&P and Barney. Delcore's
initial
complaint asserted that the illegal "course of conduct continued
from February
1989 through April 25, 1989."[2]
On June 8, 1989, the District Director of the Department of
Labor issued a
letter declining to take action on Delcore's complaint. The
District Director
stated that the settlement issue was part of the underlying
litigation between
Delcore and his former employers. Because the underlying dispute
was then
before a district court, the District Director deemed the matter
inappropriate
for intervention. He added that the Department of Labor would
"not be able to
be of service" because thirty days had elapsed between the
alleged
discrimination and the complaint. Delcore appealed that decision
to an
Administrative Law Judge ("ALJ").
Both in Delcore's hearing memorandum, filed on
November 30, 1989, and at
the administrative hearing, held on March 13, 1990,
Delcore's attorney
took the position that the discriminatory behavior occurred on an
ongoing basis
throughout the settlement negotiations beginning in December 1988
and ending
with the termination of negotiations on April 25, 1989.
Delcore's memorandum
asserted:
The continuing offer of the agreement to the Claimant during a
series of
negotiations is the violation herein. In fact, the insistence of
the
Respondents to leave the offensive provisions in the agreement is
worse than a
simple offer of the agreement and a withdrawal of the offer after
an initial
counter offer by the Claimant. The repeated insistence of the
Respondents to
retain the illegal provisions of the agreement evidences a
predetermined policy
and insistence by the Respondents to require the Claimant to
waive essential
rights of access . . . .
(J.A. 170-71). At the hearing before the ALJ, Delcore's attorney
asserted:
This was not a one time take it or leave it proposition. It was
a series of
ongoing discussions in January and February. It was reduced to a
written
offer. The written offer was presented as an invitation for
counter offers and
continued negotiations; therefore, when the Complainant replied
in March of '89
rejecting the particular terms, it was not concluding the series
of
negotiations, but, in fact, continuing the series of
negotiations.
Negotiations did not conclude finally until the Respondent's
letter in April .
. . saying no further negotiations are possible.
(J.A. 254).
On April 24, 1990, the ALJ ruled in favor of the defendant
companies. The ALJ
held as follows: 1) Section 210 was not applicable because
Delcore's
employment had been terminated on September 14, 1987, over one
year before the
alleged discriminatory action; 2) the complaint was untimely
because the
alleged violation, the settlement offer, occurred in February
1989, months
before the complaint was filed; and 3) Delcore had failed to
prove that
CL&P or Barney had taken retaliatory action against a
protected activity.
Again, Delcore appealed the decision and briefs were filed with
the Secretary
of Labor.
No further action was taken until April 19, 1995, when the
Secretary of Labor,
Robert Reich, rejected the ALJs decision. The Secretary
held that
Delcore met the statutory definition of employee because the
alleged
discrimination arose out of the employment relationship, and
therefore, the
statutory scheme was applicable. The Secretary then found that
the provisions
in question were particularly restrictive, contrary to public
policy, and
intended to deprive Delcore of his participation rights under the
ERA. As a
consequence, the Secretary determined that the proposed
settlement provisions
were adverse actions prohibited by Section 210. In addition, the
Secretary
held that terminating the settlement negotiations in response to
Delcore's
refusal to accept the provisions represented a separate and
independent
violation.[3] Finally, the Secretary held
that Delcore's complaint was timely made. In conclusion, the
Secretary of
Labor ordered CL&P and Barney "to refrain from
discrimination, to post and
circulate [the] decision, and to compensate Complainant for costs
and
expenses." CL&P appeals the Secretary's decision with
respect to each
issue.
ANALYSIS
This action is based on Section 210 of the ERA, a remedial
statute intended to
shield employees from adverse action taken by their employers in
response to
employees' complaints of safety violations. Section 210 provides
in part:
(a) Discrimination against employee
No employer, including a [NRC] licensee, an applicant for a
Commission license,
or a contractor or a subcontractor of a Commission licensee or
applicant, may
discharge any employee or otherwise discriminate against any
employee with
respect to his compensation, terms, conditions, or privileges of
employment
because the employee (or any person acting pursuant to a request
of the
employee)--
(1) commenced, caused to be commenced, or is about to commence
or cause to be
commenced a proceeding under this chapter or the Atomic Energy
Act of 1954, as
amended [42 U.S.C. 2011 et. seq.], or a proceeding for the
administration or
enforcement of any requirement imposed under this chapter or the
Atomic Energy
Act of 1954, as amended;
(2) testified or is about to testify in any such proceeding
or;
(3) assisted or participated or is about to assist or
participate in any
manner in such a proceeding or in any other manner in such a
proceeding or in
any other action to carry out the purposes of this chapter or the
Atomic Energy
Act of 1954, as amended [42 U.S.C. 2011 et. seq.].
I. Was Delcore an Employee for Purposes of Section
210?
The initial question before us is whether Delcore falls
within the protected
class of "employee" as defined by Section 210. Although there is
no dispute
that CL&P is an employer as defined by Section 210, CL&P
argues that
Delcore was not protected by the ERA during the period of
negotiations because
he had been terminated from his employment more than one year
earlier. In his
decision, the Secretary of Labor determined that despite
Delcore's status as a
former employee, he fell within the scope of the term "employee"
because the
alleged discrimination arose out of the employment relationship.
John Delcore,
No. 89-ERA-38 (April 18, 1995) (Dep't of Labor) (Final Review)
("Decision &
Order"). We review the Secretary's interpretation of the ERA to
determine
whether it is a permissible construction of the statutory
mandate. Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843
(1984); accordBechtel Constr. Co. v. Secretary of
Labor, 50 F.3d
926, 931-32 (11th Cir. 1995) (applying Chevron to Section
210).
The Secretary grounds his interpretation on two bases: 1)
the broad remedial
purpose of the statute, and 2) the legislative history of Section
210. The
Secretary argues that a narrow interpretation of the term
"employee" would
frustrate the remedial purpose of the ERA. SeeBechtel, 50 F.3d
at 932 ("[I]t is appropriate to give a broad construction to
remedial statutes
such as nondiscrimination provisions in federal labor laws.");
Kansas Gas
& Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir.
1985) (affirming
the Secretary's broad interpretation of protected activity),
cert.
denied, 478 U.S. 1011 (1986). To further support his
position, the
Secretary cites a passage from the legislative history in which
the terms
"employee" and "any worker" are used interchangeably, suggesting
a loose rather
than a strict definition. (Resp't Br. at 22 (citing S. Rep. No.
848, 95th
Cong., 2d Sess. 29 (1978), reprinted in 1978 U.S.C.C.A.N.
7303, 7304)).
In view of these considerations, the Secretary chose to adopt a
broad
definition of employee from other analogous statutes that include
former
employees so long as the alleged discrimination is related to or
arises out of
the employment relationship. See, e.g., Charlton v.
Paramus Bd. of
Educ., 25 F.3d 194, 198-200 (3d Cir.) (Title VII), cert.
denied, 130
L. Ed.2d 503 (1994); E.E.O.C. v. Cosmair, Inc., L'Oreal Hair
Care Div.,
821 F.2d 1085, 1088 (5th Cir. 1987) (including former employees
within
definition of employee in the context of the ADEA) (citing
Pantchenko v.
C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (per
curium)). We are
persuaded that the Secretary's interpretation of employee is a
permissible
construction as required by the Chevron analysis.
In his Decision and Order, the Secretary went on to find
that the alleged
discrimination, offering a settlement agreement containing
improper gag
provisions, arose out of the employment relationship. We will
reverse the
Secretary's finding of fact only if it is unsupported by
substantial evidence.
See Administrative Procedure Act, 5 U.S.C. [[section]]
706(2) (1988);
Passaic Valley Sewerage Comm'rs v. Department of Labor,
992 F.2d 474,
478 (3d Cir.), cert. denied, 126 L. Ed.2d 373 (1993).
CL&P argues
that the factual basis for the Secretary's finding is faulty
because "[t]he
allegedly discriminatory settlement negotiations took place to
resolve
post-employment litigation initiated by Mr. Delcore."
(Pet'r Br. at
32-33). This argument either ignores the thread of continuity
between the
employment dispute and the litigation or suggests that litigation
activity is
always beyond the scope of the employment relationship. In
either case, we
reject this position and affirm the Secretary's finding as
substantially
supported by the evidence.
II. Did the Gag Provisions Constitute Adverse Action?
We next turn to the issue of whether proffering a settlement
agreement,
whereby an employer attempts to restrict an employee's ability to
cooperate
with administrative and judicial bodies, violates Section 210 of
the ERA.[4]
No agreement affecting the compensation, terms, conditions, or
privileges of
employment, including an agreement to settle a complaint filed by
an employee
with the Department of Labor pursuant to section 211 [formerly
210] of the
Energy Reorganization Act of 1974, as amended, may contain any
provision which
would prohibit, restrict, or otherwise discourage an employee
from
participating in protected activity as defined in paragraph
(a)(1) of this
section including, but not limited to, providing information to
the NRC or to
his or her employer on potential violations or other matters
within NRC's
regulatory responsibilities.
10 C.F.R. 50.7(f) (1995). Given that this express prohibition
was promulgated
after the events in question, we consider the Secretary's
decision in light of
the law as it stood in 1990. The settlement agreement's
provisions that form
the basis of this action would have 1) prohibited Delcore from
appearing or
encouraging another from appearing as a voluntary witness or
party in any
judicial or administrative proceeding against CL&P or Barney,
2) required
Delcore to resist compulsory process, and 3) restricted both the
substance and
manner in which Delcore communicated with the NRC.
In his Decision and Order, the Secretary found that the gag
provisions in
question were "particularly restrictive" and constituted adverse
action in
violation of Section 210. Pointing to a memorandum prepared by
the NRC general
counsel stating that "Section 210, as a matter of national
policy, provides
special protection to employees or former employees who engage in
the
activities protected by Section 210(a) . . . ," the Secretary
concluded that
relinquishing these rights in exchange for financial
considerations would be
illegal and contrary to public policy. Decision & Order at 9
(citing 135
Cong. Rec. 27,836 (1989)). Noting that the ERA whistle-blower
provision is
modeled on the Mine Safety and Health Act of 1977 (Mine Act), 30
U.S.C.
[[section]] 815(c) (1988), seeMackowiak v. University
Nuclear Sys.,
Inc., 735 F.2d 1159, 1163 (9th Cir. 1984), the Secretary also
pointed to
the broad interpretation of the Mine Act's protective scope.
SeeSecretary of Labor v. Mullins, 888 F.2d 1448, 1452 (D.C.
Cir. 1989).
The Secretary reasoned that the ERA should be similarly construed
to protect
employees against this improper activity pursuant to its remedial
objectives.
CL&P argues that the challenged activity did not
discriminate against
Delcore with respect to his terms of employment as required by
the statutory
language, but rather arose from Delcore's post-termination
lawsuit. (Pet'r Br.
at 33). This argument is specious. Delcore's lawsuit alleged
that he had been
terminated in violation of the terms of his employment, terms
stipulated
contractually and statutorily. The settlement agreement was an
attempt to
resolve the final terms of Delcore's employment. Although
CL&P
acknowledges "[t]hat the subject matter of the litigation
generally concerned
events related to Mr. Delcore's employment," id., it
asserts that the
litigation should not be treated as though it arose from the
employment
relationship. This assertion denies simple facts. As CL&P
would have it,
once an employment conflict degenerates to the point of formal
litigation, the
tactics employed by the litigants would be protected from the
legal constraints
imposed by the ERA. We disagree.
As its fall-back position, CL&P argues that the proposal
of a settlement
agreement containing such provisions could not have constituted
adverse action
because Delcore was free to reject the proposal. This
characterization of
adverse action not only oversimplifies subtle, implicit,
discriminatory action,
but is contrary to the expansive scope of the ERA. Cf.Mullins,
888 F.2d at 1452 (holding that an offer to reemploy under illegal
conditions
violated Mine Act anti-discrimination provision). Although the
act of inducing
an employee to relinquish his rights as provided by the ERA
through means of a
settlement agreement is less obvious than more direct action,
such as
termination, it is certainly aimed at the same objective:
keeping an employee
quiet.[5]
The Secretary concluded that the settlement gag provisions
were an act adverse
to Delcore's statutory rights, thereby violating the
anti-discrimination
provisions of the ERA. Again, we review the Secretary's
interpretation of
Section 210 to determine whether it is a permissible construction
of the
congressional mandate. SeeChevron, 467 U.S. at
843. In this
case, CL&P sought to impose these improper conditions on the
final terms of
its employment relationship with John Delcore. The fact that it
did so under
the cover of a litigation strategy is irrelevant. Therefore, we
hold that the
Secretary's interpretation is permissible and affirm the
decision.
III. Statute of Limitations
Finally, we turn to whether Delcore's complaint was timely
made. During the
period in question, an employee had thirty days from the
occurrence of a
violation to file a complaint under the ERA. 42 U.S.C.
[[section]]
5851(b)(1988); 29 C.F.R. [[section]] 24.3(b)(1989). CL&P
asserts that
Delcore's complaint should be time-barred because it was filed
more than thirty
days after the settlement agreement was received. Instead, the
Secretary of
Labor focused on CL&P's April 25th letter breaking off
negotiations and
held that the complaint was not time-barred.
Generally, the limitations period begins to run from the
date that a
complainant learns of the employer's final decision. Delaware
State College
v. Ricks, 449 U.S. 250, 259 (1980) (Title VII); see
alsoEnglish
v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988) (applying
Ricks to
[[section]] 210). Application of the rule in this case, however,
is
inappropriate given the nature of the violation: The adverse
action in
question is not a discrete decision taken by an employer, but
rather a
negotiation tactic, employed over a period of months, by which
CL&P and
Barney attempted to coercively induce Delcore into relinquishing
or restricting
his ability to provide federal regulatory agencies information
regarding
potential safety violations. Consideration of limitations
periods requires a
fair and reasonable weighing of the conflicting concerns of the
remedial intent
of the ERA and the desire to keep stale claims out of the courts.
SeeHavens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982).
As such, we
consider application of the "continuing violation" exception to
this case.
Under the continuing violation standard, a timely charge
with respect to any
incident of discrimination in furtherance of a policy of
discrimination renders
claims against other discriminatory actions taken pursuant to
that policy
timely, even if they would be untimely if standing alone.
Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert.
denied, 128 L.
Ed.2d 339 (1994). A continuing violation exists where there is a
relationship
between a series of discriminatory actions and an invalid,
underlying policy.
SeeCornwell v. Robinson, 23 F.3d 694, 703-04 (2d
Cir. 1994).
Thus, in cases where the plaintiff proves i) an underlying
discriminatory
policy or practice, and ii) an action taken pursuant to that
policy during the
statutory period preceding the filing of the complaint, the
continuing
violation rule shelters claims for all other actions taken
pursuant to the same
policy from the limitations period.
In this case, Delcore alleges a practice by which his
employers used the
carrot of a settlement agreement to impose discriminatory
restrictions on
employees' rights to report to regulatory agencies. CL&P
admits as much
when describing the provisions in question as commonplace.
Therefore, the
first prong of this exception is met.
The second prong of the inquiry focuses on whether the
defendants took some
action pursuant to this policy within the thirty days preceding
May 11, 1989.
The Secretary asserts that the policy of imposing these
discriminatory
restrictions occurred throughout the negotiating process, a
process which was
not terminated until April 25, 1989. The proposed
provisions were part
and parcel of the entire negotiation process. Thus, so long as
the negotiation
process continued, the adverse action persisted, and the
violation continued.
Moreover, CL&P revoked the settlement agreement on April 25,
an act made
pursuant to its discriminatory policy and within the limitations
period.
Therefore, the second prong of the continuing violation test is
met.
CL&P attempts to constrain the duration of the adverse
action to the
receipt of the written settlement agreement by Delcore. This
position fails to
acknowledge, however, that CL&P continued to insist
throughout the
negotiations that Delcore relinquish his right to provide
agencies with
information; the written proposal merely evidences, exactly and
concretely, the
extent of that demand.
Even if we were to focus on the written proposal, CL&P's
argument would
still fail. Pointing to principles of contract law, CL&P
suggests that
although the violation might not be limited to its transmission
of the written
proposal on February 8, 1989, its effectiveness would continue
only as long as
the offer was open. Traditional contract theory and Connecticut
law provide
that an offer is extinguished upon a counteroffer, seeCavallo v.
Lewis, 473 A.2d 338, 340 (Conn. App. Ct. 1984) (per curium).
CL&P
argues that the March 28 letter constituted such a counteroffer
and
extinguished their offer. Thus, according to this analysis, the
commencement
of the limitations period would have occurred when Delcore's
attorney replied
on March 28 that the proposal was overly restrictive.
Accepting arguendo that the violation consisted
solely of the written
settlement offer, CL&P's argument fails nonetheless because
under
principles of contract law, an offer is not extinguished where
such a reply
merely requests modification. See E. Allan Farnsworth,
Contracts
[[section]]3.20 (2d ed. 1990) ("But a mere request for
modification . . . does
not ordinarily [extinguish the offer]."). It is undisputed that
on February 9,
1989, defendants' counsel "suggested that the proposed settlement
should be
presented to Mr. Delcore for his review as originally drafted and
that counsel
could thereafter work out appropriate language to resolve
objections." (Stip.
10.) The March 28 letter was not a rejection of the offer, but
rather a
request to modify the language of the proposed settlement
pursuant to the
offeror's suggestion. Thus, the proposed settlement agreement
remained on the
table until revoked by CL&P on April 25, 1989.
That being said, however, we view the violation to encompass
the negotiations
process as a whole, and not just one particular product of the
negotiations.
The discussion of offer and rejection, while preclusive with
respect to
CL&P's argument, misses the appropriate timing focus--the
negotiation
tactic employed by CL&P throughout the process. Therefore,
we hold that
the Secretary properly ruled that the complaint was timely
because the last act
pursuant to an ongoing, discriminatory policy occurred within the
statutory
period when CL&P revoked its outstanding settlement offer on
April 25.
CONCLUSION
Therefore, for the above-stated reasons, we affirm the
Secretary's decision
that proffering a settlement agreement containing provisions
restricting an
employee's access to judicial and administrative agencies
violates Section 210.
WALKER,Circuit Judge, dissenting:
Although deference is owed to an agency's interpretation of
statutes in its
area of "special competence," seeChevron U.S.A. Inc.
v. National
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984),
here the
Secretary of Labor ("Secretary") overstepped his bounds by
interpreting
[[section]] 210 of the Energy Reorganization Act of 1974, 42
U.S.C. [[section]]
5851, in an unreasonable manner. Even assuming that a former
employee is an
"employee" within the meaning of [[section]] 210, a proposition
with which I do
not agree, it is plain to me that the Secretary erred in
concluding that
Connecticut Light & Power ("CL&P") engaged in an "adverse
employment
action" against Delcore within the meaning of the ERA.
A. Is Delcore an "employee?"
The majority and I agree that the first question for
resolution is whether
Delcore falls within the protected class of "employee" as defined
by
[[section]] 210. CL&P argues that Delcore is not an
"employee" within the
meaning of the ERA both because his employment was terminated
more than a year
before he filed his [[section]] 210 complaint, and because he was
the employee
of a subcontractor that had performed work at a CL&P-owned
nuclear plant
and he never worked directly for CL&P. Although Delcore's
employment by a
subcontractor does not, standing alone, take Delcore outside the
scope of
[[section]] 210 protection, seeAdams v. Dole, 927
F.2d 771, 777
(4th Cir.), cert. denied, 502 U.S. 837 (1991), I think
that his
termination from employment prior to the action complained of
does.
I recognize that in interpreting analogous statutes, some of
our sister
circuits have held that former employees may be covered where the
alleged
discrimination against them is related to or arises out of the
employment
relationship. See, e.g., Charlton v. Paramus Bd. of
Educ., 25
F.3d 194, 198-200 (3d Cir.) (Title VII), cert. denied, 115
S. Ct. 590
(1994); Passer v. American Chem. Soc'y, 935 F.2d 322,
330-331 (D.C. Cir.
1991) (Age Discrimination in Employment Act ("ADEA")); EEOC v.
Cosmair,
Inc., L'Oreal Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.
1987) (ADEA);
Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.
1977) (Fair
Labor Standards Act). However, I am not persuaded that Congress
intended that
former employees fall within the scope of [[section]] 210's
protection.
In Robinson v. Shell Oil Co., the Fourth Circuit held
that the
definition of "employees" in Title VII's anti-retaliation
provision was
unambiguous in its exclusion of former employees. 70 F.3d 325,
328-29 (4th
Cir. 1995) (in banc), cert. granted, 64 U.S.L.W. 3605
(U.S. Apr. 22,
1996) (No. 95-1376). The Fourth Circuit further stated that
"courts may stray
beyond the plain language of unambiguous statutes" only under
"rare and narrow"
circumstances such as where "the literal application of statutory
language
would lead to an absurd result." Id. (declining to apply
the exception).
Similarly, in Reed v. Shepard, the Seventh Circuit
held that a former
employee could not make out a prima facie case of retaliation in
violation of
Title VII where "the alleged retaliatory activities took place
after the
termination of [her] employment and was therefore not an adverse
employment
action." 939 F.2d 484, 492-93 (7th Cir. 1991). The Reed
Court stated:
"[I]t is an employee's discharge or other employment impairment
that evidences
actionable retaliation, and not events subsequent to and
unrelated to
his employment." Id.
The majority suggests that because the terms "employee" and
"any worker" are
used interchangeably in the legislative history of the ERA,
former employees
must be covered. This argument is flawed. The plain meaning of
the term "any
worker" does not include former workers. As the Supreme Court
has
acknowledged, "courts must presume that a legislature says in a
statute what it
means and means in a statute what it says there." Connecticut
Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992). SeealsoUnited
States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)
("[W]here, as
here, the statute's language is plain, 'the sole function of the
courts is to
enforce it according to its terms.'" (quoting Caminetti v.
United
States, 242 U.S. 470, 485 (1917))). The term "employee" is a
straightforward unambiguous one. When one's employment with his
employer ends,
one ceases to be an "employee." With all due deference to the
Secretary, I
believe that his conclusion that [[section]] 210 applied to
persons that once
were, but no longer are, employees was unreasonable because the
statute is
unambiguous.
B. Did CL&P engage in an adverse employment action?
Even if Delcore, as a former employee, could still be
considered an "employee"
within the meaning of [[section]] 210, I cannot agree with the
majority that
CL&P engaged in an adverse employment action against him, and
believe that
the Secretary's determination to that effect to be contrary to
law.
The action in question -- CL&P's making and then, when
Delcore refused it,
withdrawing a settlement offer -- cannot properly be
characterized as "adverse"
to Delcore because Delcore had no right to a settlement. The
notion that
[[section]] 210 creates a right not to be bothered with a
settlement offer that
the offeree is free to refuse seems to me nonsensical. The
majority suggests
that because Delcore had a right not to be terminated from his
employment in
violation of [[section]] 210, he also had a right to a
post-termination
settlement of his lawsuit against CL&P that did not contain
certain gag
provisions. I am aware of no precedent for the extraordinary and
novel
proposition that a litigant has a right to a settlement, nor does
the majority
cite any. Revealingly, in his brief, Delcore refers not to a
"right of
settlement" but rather, to a "hope of settlement." Indeed, in
his April 1995
order, the Secretary of Labor conceded that CL&P "ha[s] no
obligation to
settle a claim against [it] and can under normal circumstances
break off
settlement negotiations for any reason, or no reason at all."
The fact that
CL&P offered terms of settlement that Delcore indicated were
unacceptable
and that CL&P then withdrew left Delcore no worse off than he
was before
settlement negotiations began. I believe that in these
circumstances, the
Secretary's conclusion that Delcore suffered an employment action
that was
adverse was contrary to law.
Moreover, I cannot agree that what CL&P did here was
even an "employment
action." The majority claims that the alleged discrimination
need only
"ar[i]se out of the employment relationship." But the
"discrimination" alleged
by Delcore arose out of his employment relationship with CL&P
only to the
extent that there would have been no lawsuit to settle had
Delcore not at one
time been employed by a subcontractor of CL&P. This
connection is too
tenuous to support a finding of adverse employment action. The
majority states
that "[t]he settlement agreement was an attempt to resolve the
final terms of
Delcore's employment." I cannot agree. At the time of the
settlement
negotiations, Delcore was no longer employed. Therefore, there
were no "terms"
to resolve.
The situation here is markedly different from that in
Secretary of Labor v.
Mullins, 888 F.2d 1448 (D.C. Cir. 1989), a case on which the
majority
relies. In Mullins, the District of Columbia Circuit held
that an offer
by an employer to re-employ a miner under illegal and dangerous
conditions
constituted a violation of the Mine Safety and Health Act.
Id. at
1451-52. Had CL&P offered to re-employ Delcore on the
condition that he
not report safety concerns, the situation would parallel that in
Mullins. In such a case, the "terms" and "conditions" of
employment --
specifically, hiring -- would be affected and there would be an
employment
action. This is not such a case, however.
The majority equates an employer's effort to induce an
employee to relinquish
his [[section]] 210 rights under threat of termination with the
attempt to do
so by means of a post-termination settlement agreement. The
majority claims
that both types of actions are "aimed at the same objective:
keeping an
employee quiet." Although their objectives may be the same, the
actions are
dissimilar. In the former, the employee is at risk of losing his
employment
and the employer is seeking to alter the terms of employment. In
the latter, a
former employee is only at risk of losing, as Delcore's brief
puts it, the
"hope of settlement" of a post-termination lawsuit. That
Congress intended to
protect individuals in the former situation, and not in the
latter, is in no
way inconsistent or problematic.
Subsequent to the events of this case, the Nuclear
Regulatory Commission
("NRC") promulgated a regulation proscribing restrictive
settlement provisions,
such as those sought by CL&P from Delcore, with respect to
complaints filed
with the Department of Labor. I do not take issue with the NRC's
authority to
promulgate such regulations, particularly when it does so after
allowing for
notice and comment. I do, however, object to the majority's
holding, which is
tantamount to approving the Secretary's enforcement of these
subsequent
regulations upon CL&P for conduct that preceded their
promulgation.
I respectfully dissent.
[ENDNOTES]
[*]The Honorable Gerald W. Heaney,
United States Senior Circuit Judge for the Eighth Circuit,
sitting by
designation.
[1]The terms of the proposed settlement
agreement in question
provide:
[2]Although the latter date was initially
identified as April
27, 1989, it was subsequently corrected by joint stipulation of
fact.
[3]CL&P complains that in finding that
breaking off
settlement negotiations constituted a second and independent
violation of the
ERA, the Secretary unlawfully amended Delcore's complaint. After
a careful
review of the entire record, we agree that this issue was not
litigated by the
parties, and therefore, the Secretary's finding with respect to
this
independent action was improper and is vacated.
[4]We note that in October 1993, subsequent to
the events in
question, the NRC promulgated a regulation expressly prohibiting
the proffering
of a restrictive settlement agreement. The regulation
provides:
[5]The dissenting opinion bases its criticism
of our opinion
on its observation that Delcore had no right to a settlement.
Despite the
dissent's assertion to the contrary, we do not now suggest the
novel
proposition that such a right exists. What our opinion does
recognize,
however, is that employees have the right to be free from
discriminatory action
meant to deprive them of their statutory rights. While in this
case, Delcore
may have rejected the settlement, thereby maintaining his
prerogative to
communicate with the NRC, the behavior of employers to foist such
restrictions
on the employees through the guise of a choice does constitute
adverse action
with respect to an employee's rights to communicate with
regulatory agencies.
Although the dissent suggests that Mullins presents a very
different and
distinguishable case, we find it's reasoning applicable in this
case. Under
the dissent's rationale, the offer of reemployment in
Mullins would not
have constituted a violation of the Mine Act because the offer
merely
represented a choice which the former employee was free to
refuse. Clearly,
the circuit court there, as we do here, recognized that this kind
of
discriminatory action, albeit more subtle in its form than the
more obvious act
of termination, can represent a significant threat to the
statutory purpose of
ensuring clear lines of communication between employees and
regulatory
agencies. The dissent's view in our judgment would undermine
Congress' broad
remedial purpose in enacting the ERA.