USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON
FOR ADVERSE ACTION
Even if the complainant establishes a prima facie case of
retaliatory discharge, the respondent is allowed the opportunity
to come forward with evidence that it discharged the complainant
for legitimate reasons. Morris v. The American Inspection
Co., 92-ERA-11 (Sec'y Dec. 15, 1992), slip op. at 8-9
(citing Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y
Apr. 25, 1983), slip op. at 8).
[Nuclear & Environmental Digest XI B 1] PRIMA FACE CASE; EMPLOYER'S BURDEN TO ARTICULATE A LEGITIMATE, NON-DISCRIMINATORY REASON FOR THE ADVERSE ACTION IS NOT A BURDEN OF PROVING THAT IT WAS ACTUALY MOTIVATED BY THE ARTICULATED REASON
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007),
PDF |
HTM
the ALJ erred in stating that after the complainant shows adverse action, protected activity, and nexus, the burden of proof shifts to the respondent to prove that it took the adverse action for a legitimate, non discriminatory reason. Rather, the respondent's burden at that point is only to articulate or produce evidence of a non discriminatory reason for taking the adverse action. The ALJ also erred in evaluating the credibility of the Respondent's witnesses at that stage of the proceedings, and putting the burden on the Respondent to prove that it had no intent. At this stage, the respondent does not need to persuade the adjudicator that it was actually motivated by the proffered reasons, but only raise a genuine issue of fact as to whether it discriminated against the plaintiff.
[Nuclear & Environmental Digest XI B 1]
EVIDENCE; RELEVANCE OF ADVERSE ACTIONS FOR WHICH NO TIMELY
COMPLAINT WAS FILED
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB observed that adverse employment actions about
which Complainant did not timely file complaints could not constitute independent causes of
action, but are clearly relevant to question of Respondent's motive for its later termination of
Complainant's employment because Respondent cited previous incidents as a contributing factor
in the termination decision. Moreover, the ARB held that even incidents not cited as a
contributing factor must be evaluating in examining the mind-set of the decision-makers in
reaching the termination decision. The ARB also noted that they would be relevant to the issue
of whether there had been a continuing violation culminating in Complainant's termination.
ARTICULATION OF LEGITIMATE, NONDISCRIMINATORY REASON;
COMPLAINANT MAY RELY ON DOCUMENTARY EVIDENCE SUBMITTED BY
COMPLAINANT
[N/E Digest XI B 1]
In Smith v. Esicorp, Inc., 93-ERA-16
(Sec'y Mar. 13, 1996), the Complainant argued that the
Respondent failed to rebut his prima facie case when
it relied for evidence of the explanation of its actions
solely on a "Speakout" report issued following an
internal investigation, when it had been admitted as a
Complainant's exhibit. The Respondent did not call any
witnesses. The Secretary stated that "[s]ince an
employer may meet its burden by cross-examining the
employee's own witnesses . . ., it should be permitted to
rely on evidence such as [the Speakout report], submitted
and pursed by the employee at the hearing as employer's
explanation." Slip op. at 17 n.13 (citations omitted).
The Secretary found that the Speakout report "raised a
genuine issue of fact as to whether the employer
discriminated against the employee." Slip op. at 17.
BURDEN OF PROOF; EMPLOYER'S REASON FOR ADVERSE ACTION
[N/E Digest XI B 1]
In considering whether a demotion was retaliatory, the
Respondent is not required to prove a non-discriminatory
reason. "It is not enough to disbelieve the employer;
the factfinder must believe the employee's explanation of
intentional discrimination." Smith v. Esicorp,
Inc., 93-ERA-16, slip op. at 21-22 (Sec'y Mar. 13,
1996), citing St. Mary's Honor Center v. Hicks, 113
S. Ct. 2742, 2754-56 (1993).
CLEAR AND CONVINCING STANDARD OF ERA SECTION 211
[N/E Digest XI B 1]
In Remusat v. Bartlett Nuclear, Inc.,
94-ERA-36 (Sec'y Feb. 26, 1996), the ALJ had concluded that the
1992 amendments to the whistleblower provision of the ERA
lessened a complainant's initial burden in establishing a
prima facie case, and that the "clear and
convincing evidence" standard of Section 211, 42 U.S.C.
§ 5851(b)(3)(D), was applicable to evidence of
legitimate reasons for the Respondent's adverse action that
was proffered in response to the prima facie case.
The Secretary noted that the ALJ did not have the benefit of
his decision in Dysert v. Florida Power Corp., 93-
ERA-21 (Sec'y Aug. 7, 1995), appeal docketed Dysert v.
Sec'y of Labor, No. 95-3298 (11th Cir. Sept. 28, 1995),
in which the Secretary determined that the initial burden in
establishing a prima facie case was unchanged by the
1992 amendments. The Secretary also held that the
"clear and convincing standard" of Section 211 is
reached only if the dual or mixed motive doctrine is
invoked.
BURDEN OF ARTICULATION; PRODUCTION NOT PERSUASION [N/E Digest XI B 1]
When the burden shifts to the respondent to articulate a
legitimate nondiscriminatory reason for failing to hire a
complainant, the employer need not persuade the court -- the
burden is only of production. Bausemer v. TU
Electric, 91-ERA-20 (Sec'y Oct. 31, 1995), citing Kahn
v. United States Secretary of Labor, 64 F.3d 271, 278 (7th
Cir. 1995). In Bausemer, the Respondent's
articulated reason for not hiring the Complainant, implementation
of a "Staff Augmentation Program" (an effort to reduce
cost of employees supplied by contractors by negotiated
selection), was sufficient to dissolve the Complainant's prima
facie case and place the burden on the Complainant to prove that
the proffered reason was pretext. Although there was some
evidence that the Staff Augmentation Program involved a degree of
manipulation, the Secretary concluded that the Respondent's
motivation was continuity of operation rather than retaliation
against the Complainant.
XI.B.1. Legitimate, nondiscriminatory reason
for adverse action
If the employee establishes a prima facie case, the employer has
the burden of producing evidence to rebut the presumption of
disparate treatment by presenting evidence that the alleged
disparate treatment was motivated by legitimate, nondiscrimatory
reasons. Significantly, the employer bears only a burden of
producing evidence at this point; the ultimate burden of
persuasion of the existence of intentional discrimination rests
with the employee. Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981) (Title VII case).
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y
Apr. 25, 1983).
XI.B.1. Respondent's burden; does not need to show
reason was supported by the facts, but only that
it believed them at the time
Where the ALJ found that the Respondent concluded in good faith
that the Complainant assaulted a co-worker and the Complainant
was discharged for that reason alone, the Secretary responded to
the Complainant's contention that the Respondent did not prove
that the Complainant actually assaulted the co-worker by noting
that the Respondent did not have the burden of proving that the
attack took place. Rather, the Complainant had the burden of
proving by a preponderance of the evidence that retaliation for
protected activities was a motivating factor in the Respondent's
decision to discharge the Complainant. The Respondent's burden
after the Complainant established his prima facie case was only
to articulate a legitimate reason for the discharge.
Dysert v. Westinghouse Electric Corp., 86-ERA-39
(Sec'y Oct. 30, 1991).
XI.B.1. Respondent's burden; does not need to show
reason was supported by the facts, but only that
it believed them at the time
An employer's discharge decision is not unlawful even if it was
based on a mistaken conclusion about the facts, but a decision
violates the Act only if it was motivated by retaliation.
Morgan v. Massachusetts General Hospital, 901 F.2d 186,
191 (1st Cir. 1990); see Jones v. Gerwens, 874 F.2d 1534,
1540 (11th Cir. 1989), and cases cited therein; Jeffries v.
Harris County Community Action Assoc., 615 F.2d 1025, 1036
(5th Cir. 1980). Dysert v. Westinghouse Electric
Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).
The respondent articulated a legitimate, nondiscriminatory
reason for the complainant's termination where he had been denied
plant access by the power company, and without plant access
complainant was not able to perform his employment duties. The
respondent was able to show that it was not able to transfer the
complainant to a job at another facility. The respondent
provided inspection services to the power company.
The complainant's theory that he had been subjected to a pattern
of adverse employment actions as a result of his complaint to the
NRC was not supported by the evidence. Miller v. Ebasco
Services, Inc., 88-ERA-4 (ALJ Nov. 24, 1992),
aff'd (Sec'y Nov. 24, 1992).
[Nuclear and Environmental Whistleblower Digest XI B 2 a]
LEGITIMATE NON-DISCRIMATORY REASON FOR DISCHARGE; REDUCTION IN FORCE ("RIF")
In Jones v. USDOL, No. 04-3729 (6th Cir. Sept. 8, 2005) (case below ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21), the Court of Appeals indicated that an employee discrimination litigant faces a heightened burden of proof in the context of a RIF, because the RIF itself is evidence of a legitimate reason for the discharge. The court cited Barnes v. GenCorp Inc., 896 F.2d 1467 (6th Cir. 1990) (Title VII case).
XI.B.2.a. Layoff
In Chavez v. Ebasco Services, Inc., 91-ERA-24
(Sec'y Nov. 16, 1992), the respondent established legitimate,
nondiscriminatory reasons for the complainant's layoff, and the
complainant failed to show that these reasons were a pretext for
discrimination where
the nuclear power plant mandated layoffs by the
respondent, a contractor, because of a reduction in
force.
the complainant was one of many employees laid
off.
testimony indicated that the respondent was not
aware of the complainant's protected activity at the
layoff selections were made.
testimony indicated that the personnel involved in
selecting the complainant for layoff never mentioned
safety complaints or other problems with the
complainant, and the record showed that the complainant
had been given a "good" evaluation and was
eligible for rehire.
testimony indicated that the complainant's
difficulty in being rehired related to his status as a
traveler from a different union local.
XI.B.2.a. Denial of plant access by power company
The respondent articulated a legitimate, nondiscriminatory
reason for the complainant's termination where he had been denied
plant access by the power company, and without plant access
complainant was not able to perform his employment duties. The
respondent was able to show that it was not able to transfer the
complainant to a job at another facility. The respondent
provided inspection services to the power company.
The complainant's theory that he had been subjected to a pattern
of adverse employment actions as a result of his complaint to the
NRC was not supported by the evidence. Miller v. Ebasco
Services, Inc., 88-ERA-4 (ALJ Apr. 26, 1989),
aff'd (Sec'y Nov. 24, 1992).
XI.B.2.a. RIF in nondiscriminatory manner
Employer established that its reasons for a reduction in force
were legitimate where Complainant's supervisor, who was found to
be credible by the administrative law judge, testified that the
RIF was occasioned by lack of billable contract work creating a
financial drain on the employer. Employer also established that
it conducted the RIF in a nondiscriminatory fashion where the
testimony of Complainant's supervisor indicated that four
employees were RIFed at the same time, there was no suggestion
that the other three employees were also targets of retaliation
or that their selection for discharge was in any way improper, a
low performance rating given to Complainant was based on a
reasonable ratings system. Shusterman v. Ebasco Servs.
Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
The Secretary erroneously relied on Hochstadt v. Worchester
Foundation for Experimental Biology, 545 F.2d 222 (1st Cir.
1976), to find that even if a quality control inspector's
objectives were proper, the form of his protected activities
infringed on a legitimate interest of the employer. In
Hochstadt the court upheld the dismissal of an employee
who ignored her duties to concentrate exclusively on the cause of
women's liberation. In EEOC v. Crown Zellerbach Corp.,
720 F.2d 1008, 1015 (9th Cir. 1983), the Ninth Circuit stated
that the "true basis" of Hochstadt is that an
employer may discharge employees who let protest activities
interfere with their job performance. See also Wrighten v.
Metropolitan Hospitals, Inc., 726 F2d 1346, 1355 (9th Cir.
1984) ("Hochstadt must be read narrowly lest
legitimate activism ... be chilled."). In the instant case,
there was no contention that the quality control inspector's
protected conduct impaired his competence as an inspector;
instead, his conduct flowed directly from his duties.
Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159 (9th Cir. 1984).
[Nuclear & Environmental Whistleblower Digest XI B 2 b i] CAUSATION; STANDARD FOR EVALUATING WHETHER COMPLAINANT'S CONDUCT REMOVES WHISTLEBLOWER PROTECTION B INDEFENSIBLE UNDER THE CIRCUMSTANCES STANDARD
In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ALJ had concluded that hostility toward the complainants was not motivated by their raising of safety concerns, but rather by a "sense of ownership" of the processes being used for weapons disassembly (which was being questioned by the Complainants), and the Complainants' conduct, such as improperly bypassing the chain of command and provoking hostility such as by threatening lawsuits and shut downs and ignoring advice from other workers. The ARB found that the ALJ's ruling about "sense of ownership" would permit personal, subjective sentiments to justify harassment of employees who were attempting to reduce risks of nuclear exposure or accident, and therefore antithetical to ERA whistleblower protection. The ARB found that the bypassing the chain of command finding was not supported by the record, and even if it were, it could not in itself deprive the Complainants of ERA protection. Finally, the ARB found that the ALJ applied the wrong standard in evaluating the impact of the Complainant's provocative conduct B the appropriate standard being "indefensible under the circumstances." The Board wrote:
To properly evaluate whether the hostility was related to protected activity, the Board must first examine the various incidents of harassment to determine whether they are linked to protected activity, or whether some acts of harassment were motivated by other factors, including conduct on the part of one or more of the Complainants that was wholly unrelated to protected activity. See Berkman, slip op. at 17 21; Acord v. Alyeska Pipeline Serv. Co., ARB No. 97 011, ALJ No. 95 TSC 4, slip op. at 2 6 (ARB June 30, 1997). If the harassment was linked to protected activity, we then examine the incident to determine whether one or more of the Complainants engaged in misconduct that was indefensible in those circumstances, and thus forfeited their protection under the ERA. See Martin, slip op. at 5. The Martin standard also applies to a complainant's conduct in circumstances in which he or she has been provoked by the actions of others that violate the ERA. See Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986); Carter, slip op. at 19 21. Of course, only the Complainants' protected activities that were known to their supervisors and co workers could have contributed to retaliatory harassment. See Berkman, slip op. at 16 17, 21 22.
Williams, ARB No. 98 030, USDOL/OALJ Reporter at 26.
XI B 2 b i Protest activities that include illegal acts or
unreasonably hostile or
aggressive conduct may provide an independent,
nondiscriminatory reason for
adverse employment action
In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May
18, 1995), the ALJ credited
evidence that established that the Respondent placed the
Complainant on a "Denied Access
List" (see 10 C.F.R. § 73.55(d)(7)(1994))
because of irrational behavior and
harassment of Respondent's employees after being terminated from
employment. The Secretary
adopted the ALJ's recommendation that the Complainant's complaint
be dismissed. The Secretary
wrote:
That employees are protected while presenting safety
complaints does not give them
carte blanche in choosing the time, place and/or
method of making those complaints. . .
. Nor is an otherwise protected employee automatically
absolved from abusing his status and
overstepping the defensible bounds of conduct -- even when
provoked. . . . Furthermore,
certain forms of "opposition" conduct, including
illegal acts or unreasonably hostile
or aggressive conduct, may provide a legitimate,
independent, and nondiscriminatory basis for
adverse action. . . .
In deciding to dismiss the complaint, the Secretary took into
account caselaw precedent and the
competing interests.
[Editor's note: The immediate incident leading to the
Complainant's being placed on the list
was his return visit to the work site nearly three months after
his termination of employment to demand
a meeting with a Vice-President. During the ensuing meeting the
Complainant become irrational and
made accusations. The listing continued because the Complainant
made repeated phone calls to
certain of Respondent's employees, picketed outside the plant,
painted messages on the public
roadways near several employee's homes, and sent cryptic
messages. Also of relevance was the
Complainant's behavior prior to termination which included
raising his voice in confrontations with
supervisors and disobeyance of orders. It should be noted that
although the Secretary did not discuss
the picketing in this portion of his decision, in a footnote
earlier in the decision he had assumed that
the picketing was in fact protected activity.]
Where the respondent presented evidence that it terminated the
complainant's employment based on past horseplay, ineffective
supervision of subordinates and production problems, rather than
the complainant's engaging in protected activity, inasmuch as
this evidence tended to show that the respondent's action was
motivated by legitimate, nondiscriminatory reasons, the Secretary
concluded that it rebutted the complainant's prima facie case (if
indeed the complainant had in fact even established a prima facie
case).
The Secretary noted that the explanation given by the respondent
at the time of the discharge was consistent with the testimony
adduced at the hearing. [Editor's note: apparently the purpose
of this note is to show credibility]
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at 7.
XI.B.2.b.ii. Need for close supervision
Where the record established that the complainant had a history
of recurring work-related problems and incidents during his one
year employment contract with the respondent, both before and
after his complaint to the NRC, the evidence demonstrated
legitimate, nondiscriminatory reasons for both the decision to
discharge the complainant after his one year contract expired,
and his being given a below average performance rating. The
documented incidents usually involved the complainant's
argumentativeness and inability or lack of desire to perform work
assignments in a timely manner without close supervision and
repeated instructions. The complainant had been orally
reprimanded several times.
In addition, the respondent showed legitimate, nondiscriminatory
reasons for various discussions and questions raised with the
complainant which the complainant alleged were acts of harassment
prompted by his NRC complaint. The respondent explained that the
conflicts were the result of attempts to find out why the
complainant would not follow instructions and why his work was
slow. The respondent also showed that the supervisors' treatment
of the complainant did not change after the filing of the NRC
complaint.
The complainant had complained to NRC that he was denied access
to work procedures during working hours, which allegedly was a
safety violation.
The complainant failed to establish pretext.
Sellers v. Tennessee Valley Authority, 90-ERA-14
(Sec'y Apr. 18, 1991).
XI.B.2.b.ii. Amount of work being performed
Where eight technicians had been engaged in the preparation of a
grievance petition while waiting for work authorization in their
assigned area, and had been out of contact with superiors during
that time, and were fired immediately upon presentation of the
petition, the respondent's stated reasons for the mass firing
were completely credible: the company for which the respondent
was performing under contract was extremely sensitive about the
amount of work contracting employees did and about their being in
unauthorized areas.
Pretext was not shown. All eight technicians were fired, many of
whom apparently had not expressed concerns about safety matters.
The supervisor who actually fired the complainant did not know
that the grievance petition contained a safety related complaint.
Morris v. The American Inspection Co., 92-ERA-5
(Sec'y Dec. 15, 1992), slip op. at 9-10.
XI.B.2.b.ii. Legitimate, nondiscriminatory
reason for adverse action
Where the record established that there were recurring problems
and deficiencies with Complainant's work performance beginning
prior to the time he engaged in protected activity, Complainant's
superior made efforts to assist Complainant in remedying these
problems, performance appraisals were consistent with the
feedback Complainant received from his supervisor during the
appraisal period, the Respondent successfully demonstrated
legitimate, nondiscriminatory reasons for Complainant's
unfavorable performance appraisal. Jain v. Sacramento Mun.
Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).
XI.B.2.b.ii. Poor work performance
In Conaway v. Valvoline Instant Oil Change, Inc.,
91-SWD-4 (Sec'y Jan. 5, 1993), the respondent presented
legitimate, nondiscriminatory reasons for the complainant's
termination. The respondent documented the complainant's
deficient work performance and violations of company policy
(including smoking in the store, turning away customers, running
a one-bay store, being overly friendly to female customers, poor
attitude and improper dress, and failure to complete inventory
sheets) commencing just one month after the complainant was
promoted to store manager and prior to any protected activity.
In addition, the respondent established that the company's policy
of progressive discipline was followed and culminated in
termination after the complainant was counselled, reprimanded and
placed on probation. Testimony of fellow employees corroborated
the respondent's assertions that the complainant's termination
was based solely on work performance, and that the complainant
bragged about raising safety concerns only as a means of
protecting himself from termination. The complainant did not
present any evidence of pretext.
XI.B.2.b.ii. Slow work; poor attitude
The respondent articulated a legitimate, nondiscriminatory reason
for laying off the complainant where the complainant's foreman
testified that the complainant worked slowly on some assignments,
did not exhibit the same enthusiasm he once had, and that the
other members of the crew were easier to work with.
Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 13.
Where eight technicians had been engaged in the preparation of a
grievance petition while waiting for work authorization in their
assigned area, and had been out of contact with superiors during
that time, and were fired immediately upon presentation of the
petition, the respondent's stated reasons for the mass firing
were completely credible: the company for which the respondent
was performing under contract was extremely sensitive about the
amount of work contracting employees did and about their being in
unauthorized areas.
Pretext was not shown. All eight technicians were fired, many of
whom apparently had not expressed concerns about safety matters.
The supervisor who actually fired the complainant did not know
that the grievance petition contained a safety related complaint.
Morris v. The American Inspection Co., 92-ERA-5
(Sec'y Dec. 15, 1992), slip op. at 9-10.
V.B.2.b.iii. Reasonable constraints on
employees
Lockert v. United States Dept. of Labor, 867 F.2d
513 (9th Cir. 1989).
Lockert was a quality control inspector at the Diablo Nuclear
Power Plant in California who claimed he was terminated in
violation of the ERA for conducting protected activity such as
industry code research and safety/quality problem reporting.
Employer alleged that Lockert was terminated because he twice
left his assigned work area without permission in violation of
the rules for employees, on one occasion to do industry code
research. The Secretary addressed Lockert's argument that
termination for doing industry code research is protected and
held, with regard to the scope of protected activity, that an
employer has the right to condition such research on the employee
obtaining permission from his supervisor. See Ad Art, Inc. v.
NLRB, 645 F.2d 669, 679 (9th Cir. 1980). Employer's
plausible business reason for requiring permission to leave the
work area, even to research codes, was to insure adequate quality
control coverage. Citing Mackowiack v. University Nuclear
Sys., Inc., 735 F.2d 1159 (9th Cir. 1984), the court held
that an employee is not free to choose the precise manner in
which to seek necessary information. Furthermore, Lockert did
not rebut the business reason for the permission requirement.
In Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994), the Secretary found that merely referring
an employee to the Employee Assistance Program does not cause any
diminution in the terms or conditions of employment, but that in
the instant case, the results of the referral constituted adverse
action. The Secretary also found that Respondent adequately
explained its reasons for the referral. Various witnesses
testified to Complainant's unusual statements and behavior on the
job. The Secretary recognized that "the inherent danger in
a nuclear power plant justifies [Respondent's] concern with the
emotional stability of the employees who work there", and
noted that the NRC requires licensed operators of nuclear power
plants to ascertain the emotional stability of its employees.
Slip op. at 17. Finally, after Complainant was hospitalized
after a psychotic episode and it was agreed that Complainant
suffered from bipolar affective disorder, there was ample reason
not to permit Complainant to return to work at Respondent's
nuclear power plant.
[Nuclear and Environmental Whistleblower Digest XI B 2 b iv]
COMPLAINANT'S BEHAVIOR; BALANCING TEST
In a dual motive case, the ALJ found in Smalls v. South Carolina Electric & Gas, 2000-ERA-27 (ALJ July 11, 2001), there was evidence that, in addition to discriminatory motive, Complainant was given an unsatisfactory performance evaluation in part based on the need to improve his interpersonal and communication skills. The ALJ found that although Complainant was abrasive and confrontational and frequently accused other of lying, he had not been shown to have used obscene language, trespassed, made threats, or exhibited other erratic behavior, and that the accusation of lying were intrinsically connected to his whistleblowing activity -- his belief that others were lying and conducting a cover-up. Noting that there is a balancing test employed when determining whether a complainant's behavior was so egregious so as to fall outside statutory protection, the ALJ found that the permissible and non-permissible motives for Complainant's discharge in the instant case could not be separated -- and thus Employer had not shown by clear and convincing evidence that it would have given Complainant a less-than-satisfactory performance rating in the absence of his protected activity.
[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE, NONDISCRIMINATORY REASONS FOR ADVERSE EMPLOYMENT
ACTION; RESTRUCTURING AND LAYOFFS
In Adornetto v. Perry Nuclear Power
Plant, 1997-ERA-16 (ARB Mar. 31, 1999), the only evidence of a causal relation
between Complainant's protected activity and his layoff was temporal proximity. Respondent
presented credible evidence that the decision to lay off Complainant was the result of a general,
long-term, company-wide restructuring and downsizing.
The ARB held that selection of Complainant was based on a legitimate, nondiscriminatory
reason his lower performance rating in comparison with other employees in his unit.
Complainant had been ranked last in his unit in the most recent annual forced rankings of
employees, with similar low rankings in earlier years. The ARB also found legitimate,
nondiscriminatory reasons in that Complainant was not highly motivated, spent a lot of time in
non-work related conversations, and had to be checked constantly to make sure he was
completing his assignments.
[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT
ACTION; REORGANIZATION OF HIRING PRACTICES
In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999)
(unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held
that Respondent stated a legitimate nondiscriminatory reason for not renewing Complainant's
employment agreement based on its desire to reorganize its hiring practices. Complainant was a
federal EPA employee who had been "loaned" for a period of two years to the
Commonwealth of Kentucky under an Intergovernmental Personnel Act agreement. Kentucky
declined to renew Complainant's contract because, inter alia, there was a foreshadowing
of a change in administration in the state government, and therefore there was a concern that
federal/state employment agreements should not be used for continuing projects and initiatives;
rather such positions should be filed by state employees.
[Nuclear & Environmental Digest XI B 2 b iv]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT
ACTION; PSYCHOLOGICAL FITNESS FOR UNESCORTED ACCESS
In Ross v. Florida Power & Light
Co., 1996-ERA-36 (ARB Mar. 31, 1999), the ARB found that Respondent
conclusively established that it suspended Complainant for a legitimate, nondiscriminatory
reason complaints from co-workers because of troubling behavior (veiled threats to kill
people), and that it terminated Complainant because he had failed to find another position at the
plant or clear the bar placed on his access to the secured area of the facility.
[N/E Digest XI B 2 b iv]
LEGITIMATE NON-DISCRIMINATORY GROUNDS FOR DISCHARGE;
DISCHARGE
UNREASONABLE OR ERRONEOUS FOR OTHER REASONS
Even assuming that a complainant's confrontation with a supervisor was a protected
internal complaint because the supervisor's actions might have affected quality or safety
matters,
the ARB in Abraham v. Lawnwood
Regional
Medical Center, 96-ERA-13 (ARB Nov. 25, 1997), held that Respondent
was still
free to discharge Complainant for his misbehavior towards the supervisor. The ARB held that
"[a]n employee's insubordination towards supervisors and coworkers, even when
engaged
in protected activity, may be justification for termination."
Abraham,
96-ERA-13 @ 4-5 (citations omitted).
Complainant in Abraham also argued that Respondent's decision to
discharge him was improper because of the supervisors inappropriate choice of Complainant's
work station for the confrontation, her alleged fabrications of the incident, and Respondent's
faulty investigation of her charges. The ARB observed that resolution of these matters in
Complainant's favor would not establish by a preponderance of the evidence that he was
discharged for protected activities, but only that his discharge was unreasonable or flawed as a
matter of sound management practice. The ARB agreed with the ALJ's explanation that
DOL's
jurisdiction over an ERA whistleblower complaint is limited to determining whether the
complainant's discharge was based on his protected activities not whether his discharge was
unreasonable or erroneous for other reasons. See also Kahn v. U.S. Secretary of Labor, 64 F.3d
271, 280-81
(7th Cir. 1995).
XI.B.2.b.iv. Discharge even if partial motivation
based on protected activity
In Couty v. Arkansas Power & Light Co., 87-
ERA-10 (Sec'y Feb. 13, 1992), the employer articulated legitimate
business reasons for the discharge of the complainant, such as
the complainant's abusive, disruptive, profane and threatening
behavior towards supervisors on at least three occasions.
Furthermore, the employer proved that it would have discharged
the complainant even if the complainant had demonstrated that the
employer was motivated in part by the complainant's protected
activity. The Secretary cited Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1988) (plurality opinion) in
regard to the employer's burden to disprove that the complainant
would have been discharged even if he had not engaged in
protected activity.
XI.B.2.b.iv. Behavior not appropriate to
workplace
A verbal confrontation with a supervisor in the context of
protected activity, which involves the use of abuse and
obscenities far exceeding the bounds of behavior appropriate to
the workplace, may justify discipline if the employee's conduct
was so extreme or egregious as to take it outside the pale of
protected activity. NLRB v. Clark Manor Nursing Home
Corp., 671 F.2d 657 (1st Cir. 1982) (union activist who
hurled obscenities and abuse upon anti-union employees after the
union lost an election was justifiably discharged); NLRB v.
Cement Transport, Inc., 490 F.2d 1024, 1030 (6th Cir. 1974)
(employee's reference to company's president as a "son-of-a-
bitch" not egregious or out of context in a labor struggle);
Acme-Arsena Co. v. NLRB, 804 F.2d 359 (6th Cir. 1986)
(discharge of union steward for using vulgar language was not
justified when use of profane language was not egregious conduct
that exceeded the bounds of protected activity).
Where the complainant had earlier in the morning informed the
respondent of his contact with the Environmental Protection
Agency, and was confronted later when called away from taking
pictures of alleged environmental hazards, his stream of obscene
invective in which he informed the respondent how much trouble he
had created for the respondent, his behavior was so beyond the
bounds of behavior appropriate to the workplace that the
complainant failed to prove that the respondent's firing him for
that behavior would have been mere pretext.
The Secretary quoted Dunham v. Brock, 794 F.2d 1037, 1041
(5th Cir. 1986), in which the court ruled that "[a]busive
and profane language coupled with defiant conduct or demeanor
justify an employee's discharge on the grounds of
insubordination" even though the employee had also engaged
in protected activity under the employee protection provision of
the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§ 5851.
Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y
Oct. 6, 1992).
XI.B.2.b.iv. Argumentativeness
Where the record established that the complainant had a history
of recurring work-related problems and incidents during his one
year employment contract with the respondent, both before and
after his complaint to the NRC, the evidence demonstrated
legitimate, nondiscriminatory reasons for both the decision to
discharge the complainant after his one year contract expired,
and his being given a below average performance rating. The
documented incidents usually involved the complainant's
argumentativeness and inability or lack of desire to perform work
assignments in a timely manner without close supervision and
repeated instructions. The complainant had been orally
reprimanded several times.
In addition, the respondent showed legitimate, nondiscriminatory
reasons for various discussions and questions raised with the
complainant which the complainant alleged were acts of harassment
prompted by his NRC complaint. The respondent explained that the
conflicts were the result of attempts to find out why the
complainant would not follow instructions and why his work was
slow. The respondent also showed that the supervisors' treatment
of the complainant did not change after the filing of the NRC
complaint.
The complainant had complained to NRC that he was denied access
to work procedures during working hours, which allegedly was a
safety violation.
The complainant failed to establish pretext.
Sellers v. Tennessee Valley Authority, 90-ERA-14
(Sec'y Apr. 18, 1991).
XI.B.2.b.iv. Belief that complainant assaulted a co-
worker
Where the ALJ found that the Respondent concluded in good faith
that the Complainant assaulted a co-worker and the Complainant
was discharged for that reason alone, the Secretary responded to
the Complainant's contention that the Respondent did not prove
that the Complainant actually assaulted the co-worker by noting
that the Respondent did not have the burden of proving that the
attack took place. Rather, the Complainant had the burden of
proving by a preponderance of the evidence that retaliation for
protected activities was a motivating factor in the Respondent's
decision to discharge the Complainant. The Respondent's burden
after the Complainant established his prima facie case was only
to articulate a legitimate reason for the discharge.
Dysert v. Westinghouse Electric Corp., 86-ERA-39
(Sec'y Oct. 30, 1991).
XI.B.2.b.iv. Threatening behavior
In Floyd v. Arizona Public Service Co., 90-ERA-39
(Sec'y Sept. 23, 1994), the Respondent articulated a legitimate,
nondiscriminatory reason for the adverse actions by explaining
that it followed the established fitness for duty program when it
ordered the Complainant to submit to a drug and alcohol screen
and a psychological evaluation and suspended him with pay pending
the results of the evaluations. The Respondent further explained
that, consistent with past practice, it issued a written
reprimand and ordered a one day suspension of the Complainant's
pay because the threat against corporate executives was an
inappropriate behavior.
XI.B.2.b.iv. Complainant's lack of emotional stability
In Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994), the Secretary found that merely referring
an employee to the Employee Assistance Program does not cause any
diminution in the terms or conditions of employment, but that in
the instant case, the results of the referral constituted adverse
action. The Secretary also found that Respondent adequately
explained its reasons for the referral. Various witnesses
testified to Complainant's unusual statements and behavior on the
job. The Secretary recognized that "the inherent danger in
a nuclear power plant justifies [Respondent's] concern with the
emotional stability of the employees who work there", and
noted that the NRC requires licensed operators of nuclear power
plants to ascertain the emotional stability of its employees.
Slip op. at 17. Finally, after Complainant was hospitalized
after a psychotic episode and it was agreed that Complainant
suffered from bipolar affective disorder, there was ample reason
not to permit Complainant to return to work at Respondent's
nuclear power plant.
XI.B.2.b.iv. Abusive or threatening behavior
See Dunham v. Brock, 794 F.2d 1037 (5th Cir.
1986), casenoted at XI.C.2.b., in regard to a complainant's
obscene language and abusive conduct as grounds for
discharge.
XI.B.2.b.iv. Complainant's abusive or threatening
behavior
In Couty v. Arkansas Power & Light Co., 87-
ERA-10 (Sec'y Feb. 13, 1992), the employer articulated legitimate
business reasons for the discharge of the complainant, such as
the complainant's abusive, disruptive, profane and threatening
behavior towards supervisors on at least three occasions.
Furthermore, the employer proved that it would have discharged
the complainant even if the complainant had demonstrated that the
employer was motivated in part by the complainant's protected
activity. The Secretary cited Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1988) (plurality opinion) in
regard to the employer's burden to disprove that the complainant
would have been discharged even if he had not engaged in
protected activity.
Where the Complainant made unauthorized use of a company car to
travel from New York State to
Washington, D.C. to "confer" with the special counsel
for the Congressional committee with
oversight responsibilities for the energy industry and the NRC,
the Secretary indicated that he agreed
with the ALJ's finding that a two-day docketing of pay was not
motivated by any protected activity. Norman v. Niagara Mohawk Power Corp., 85-ERA-35
(Sec'y Apr. 19, 1995) (citing
Delaney v. Massachusetts Correctional Industries, 90-TSC-2
(Sec'y Mar. 17, 1995) (employer
may take action against employees who engage in conduct that may
properly be characterized as
improper or disruptive, even when they are engaged in otherwise
protected activity).
[Nuclear & Environmental Whistleblower Digest XI B 2 b v] LEGITIMATE, NONDISCRIMINATORY REASON; UNAUTHORIZED USE OF MAILING LIST; DISRUPTION CAUSED BY CIRCULATING UNFOUNDED ALLEGATIONS
In Williams v. Baltimore City Public Schools System, ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), Complainant was a mathematics teacher who alleged that she was suspended and later dismissed for reporting numerous environmental safety and health complaints to both the school system and to government agencies. The ARB affirmed the ALJ's finding that, although Complainant had engaged in many activities that the Acts protect, Complainant was not engaged in protected activity when she mailed a letter to students' parents erroneously stating that water in one of the schools contained lead and circulated similar letters to staff, students, and parents containing unfounded and sensationalized allegations about lead and asbestos hazards at three other schools. The ARB also affirmed the ALJ's finding that Respondent's proffered reasons for suspending and dismissing Complainant B her unauthorized use of the names and addresses of persons to whom she sent the letters and the disruption in the school system caused by circulating the unfounded allegations B were legitimate and nondiscriminatory, and were not shown to be a pretext for discrimination.
[Nuclear & Environmental Digest XI B 2 b v]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION;
COMPLAINANT'S ACCESSING E-MAIL OF OTHER WORKERS
In Duncan v. Sacramento Metropolitan Air Quality Management
District,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended
decision that a five-day suspension of Complainant was motivated solely by Respondents
"legitimate interest in ensuring the confidentiality of ... sensitive personal information in
the computerized files of its chief administrative official...." Slip op. at 38. The ALJ
found that although the employee whose e-mail files had been accessed had not taken steps to put
security on the files, "she nonetheless had a reasonable expectation that the privacy of her
e-mail files would be maintained." Slip op. at 37. The ALJ rejected Complainant's
argument that the absence of written rules prohibiting employees from accessing other workers'
e-mail and the failure of the employee whose e-mail had been accessed to put security on her e-
mail files, eliminated any privacy interest in that e-mail. The ALJ concluded that "such an
argument is akin to contending that an employee is free to search the desks, briefcases or purses
of any co-worker who forgets to lock an office door or desk drawer." Slip op. at 37.
XI.B.2.b.v. Legitimate, nondiscriminatory reason for
adverse action; pretext
The respondent articulated a legitimate, nondiscriminatory reason
for placing a disciplinary letter in the complainant's file where
the complainant had sent a letter threatening a libel suit to a
vendor who had complained about the complainant's conduct while
representing the respondent. The complainant had a company
secretary type the letter and copied the letter on a division
manager of the respondent. These actions gave the letter some
"official trapping" that implied that respondent was
involved, and that the letter was more than a personal matter
between the complainant and the vendor's president.
Helmstetter v. Pacific Gas & Electric Co., 86-
SWD-2 (Sec'y Sept. 9, 1992).
The complainant failed to establish that this reason was a
pretext for discrimination where, inter alia, the
respondent reasonably called a meeting with the complainant to
discuss the incident even though other topics concerning the
complainant were also brought up at the meeting, and the
respondent reasonably took no action to investigate the vendor's
allegation of rudeness where it appeared that the respondent's
managers did not believe the accuser.
A Complainant's repeated failure to complete work assignments,
lingering after his shift was over,
unauthorized use of hotel equipment to view a pay-per-view
television event, and attempt to give a bad
impression of the hotel to guests and a new employee, were all
non-pretextual legitimate management
concerns for which the Respondent would have discharged
Complainant, regardless of his engagement
in any protected activity.
[Nuclear & Environmental Whistleblower Digest XI B 2 b vi] LEGITIMATE, NONDISCRIMINATORY REASON; UNAUTHORIZED USE OF MAILING LIST; DISRUPTION CAUSED BY CIRCULATING UNFOUNDED ALLEGATIONS
In Williams v. Baltimore City Public Schools System, ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), Complainant was a mathematics teacher who alleged that she was suspended and later dismissed for reporting numerous environmental safety and health complaints to both the school system and to government agencies. The ARB affirmed the ALJ's finding that, although Complainant had engaged in many activities that the Acts protect, Complainant was not engaged in protected activity when she mailed a letter to students' parents erroneously stating that water in one of the schools contained lead and circulated similar letters to staff, students, and parents containing unfounded and sensationalized allegations about lead and asbestos hazards at three other schools. The ARB also affirmed the ALJ's finding that Respondent's proffered reasons for suspending and dismissing Complainant B her unauthorized use of the names and addresses of persons to whom she sent the letters and the disruption in the school system caused by circulating the unfounded allegations B were legitimate and nondiscriminatory, and were not shown to be a pretext for discrimination.
[N/E Digest XI B 2 b vi]
MOTIVATION; CRITICISM OF COMPLAINANT AS NOT BEING A "TEAM
PLAYER"
In Odom v. Anchor Lithkemko,
96-WPC-1 (ARB Oct. 10, 1997), Complainant contended that his supervisor's
criticism of
Complainant as not being a "team player" has a special meaning under
whistleblower
law. Complainant was hired as an environmental coordinator. The ARB,
however, found that
the supervisor's basis for using that expression -- that Complainant was
uncooperative and
disrespectful -- was reasonable and nondiscriminatory under the facts of the
case.
[N/E Digest XI B 2 b vi]
RETALIATORY MOTIVE; EMPLOYMENT ACTIONS BASED ON COMPLAINANTS
FILING OF CIVIL ACTION
In McCafferty v. Centerior
Energy, 96-ERA-6 (ARB Sept. 24, 1997), six Complainants (employees
of an
outage contractor) had filed a civil action in U.S. District Court pursuant to
the Price-Anderson
Act (which is part of the Atomic Energy Act) seeking $30 million dollars in
damages relating to
an incident in which they had been unintentionally exposed to radiation at one
of Respondent's
facilities. The levels of radiation exposure had been determined by an NRC
investigation not to
exceed limits set by the NRC. Later, Respondent discovered that one of the
Complainant's had
been hired to perform outage work at another facility, which lead one of
Respondent's officials to
issue instructions not to hire any of the Complainants during the pending
litigation. That official
indicated that he took Complainants at their word when they claimed that they
were debilitated
and suffered emotional distress as a result of the radioactive intake. The
official did not
interview any of the Complainants because:
I didn't feel I had a need to. I read the complaint and I thought
the complaint
was clear enough that someone that needed 30 million dollars to
compensate for a low
level of radiation and that they had debilitating and emotional stress
over that I didn't
think I needed that kind of person working the outage for me.
Thereafter, Complainants filed the instant ERA whistleblower complaint.
The ARB found that Respondent's actions were direct evidence of retaliation,
and turned to the
question of whether Respondent established by clear and convincing evidence
that it would have
taken the same action against Complainants even if they had not filed their
Price-Anderson Act
lawsuit. Respondent maintained that it had legitimate concerns: Complainants
were unwilling to
work without respirators; were suffering severe and debilitating emotional
distress resulting from
radiation exposures the federal regulations allow and that they would likely
receive again; and,
might refuse to perform certain work, which conduct would disrupt Respondent's
strict outage
schedule. Respondent argued that these are business-related concerns, and
none involves intent
to retaliate against or punish Complainants for their tort lawsuit.
The ARB stated that it was significant that Respondent's did not interview
Complainants prior to
taking the action to bar them, nor take any other action to determine if their
past behavior was
disruptive or predictive of disruptive behavior in the future. Moreover,
Complainants had
continued to work the outage at the facility where they were exposed to
radiation in an
appropriate manner, and were told they would be welcomed back. There was no
proof in the
record indicating that Complainants were unwilling to work without
respirators. The ARB found
that there was no basis to assume that Complainants would refuse to follow
work instructions in
a properly surveyed and controlled environment. In short, Respondent's
speculations about how
Complainants would act in the future were just that -- speculations. The ARB
found the real
basis for barring Complainants was clearly that Respondent did not want to
provide work for
persons who had sued it. Because the suit was protected activity,
Respondent's motive was
retaliatory.
ADVERSE EMPLOYMENT ACTION; DISCHARGE BASED ON BELIEF THAT
EMPLOYEE ENGAGED IN MISCONDUCT; EFFECT OF ERROR IN THAT
BELIEF
[N/E Digest XI B 2 b vi]
In Jackson v. Ketchikan Pulp Co., 93-WPC-7
and
8 (Sec'y Mar. 4, 1996), the Respondent's belief that the
Complainants had engaged in sabotage played a major role in
its decision to fire them. In this respect, the Respondent
only needed to prove that the managers who made the decision
to discharge had a reasonable and good faith belief that the
Complainants committed sabotage. See Lockert v. United
States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989)
(employer may discharge an employee who has engaged in
protected activity if employer has reasonable grounds to
believe employee engaged in misconduct and decision was not
motivated by protected conduct).
The Secretary pointed out that there are different rules
on
this question under the whistleblower laws and Title VII on
one hand, and the NLRA on the other. Under the former laws,
a reasonable, good faith belief that the employee engaged in
misconduct is a legitimate ground for discipline even if
that belief is factually erroneous. Under the NLRA,
employers bear the risk that the NLRB may find that the
employee did not in fact commit the offense, in which case
the employee cannot be discharged regardless of the
employer's good faith belief.
In Jackson, the evidence in the case
invoked
the dual motive analysis, but the Secretary agreed with the
ALJ that the Respondent carried its burden of proving that
it would have fired the Complainant even if he had not
engaged in any protected activity.
XI B 2 b vi MOTIVE; NEGATIVE PUBLICITY
An employer may not take adverse action against an employee
whose protected reports to the news media cause negative
publicity. Hoffman v.
Bossert, 94-CAA-4 (Sec'y
Sept. 19, 1995) (Complainant was not rehired because, after his
layoff, he went to the newspapers, causing general hysteria about
asbestos in school roofing materials).
XI.B.2.b.vi. Disruption of the workplace
In Mosbaugh v. Georgia Power Company, 91-ERA-1
& 11 (ALJ Oct. 30, 1992), the Respondent's placed the
complainant on leave and ultimately discharged him after learning
that the complainant had made hundreds of hours of covert tape
recordings at the work site. The ALJ found that "assuming
[the complainant's] tape recording activity was protected at the
outset, its continuation and scope became so egregious and
potentially disruptive to the workplace that it lost any
protected status it may have once possessed." The ALJ noted
the similarity between this case and Dartey v. Zack Company of
Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), in which the
complainant had misappropriated confidential company records.
XI B 2 b vi Disruption of workplace/unauthorized
activities
Respondent rebutted Complainant's prima facie case when it
demonstrated that Complainant was removed from his office at a
facility where he was conducting grant-funded research because of
the turmoil and disruption he was causing that was not related to
any protected activity, he harassed co-workers (which led to
their formal request for his removal), and his advertisement in a
newspaper seeking research patients without the prior
authorization of the clinic. Complainant failed to present
evidence of pretext. Rainey v. Wayne State
University, 89-ERA-48 (Sec'y Apr. 21, 1994).
Where the respondent submitted evidence on a motion for summary
judgment showing that it has a policy of compliance with a NRC
Regulatory Guide recommending that quality control personnel at
nuclear construction projects be a high school graduate or have
earned a GED equivalent, and the complainant admittedly did not
satisfy these requirements nor did he present any evidence to
refute the respondent's contention that it consistently follows
the guideline, the complainant could not make out a prima facie
case of discriminatory refusal to rehire or hire with respect to
the quality control positions because he cannot show that he has
the educational qualifications required.
Nevertheless, the complainant also alleged that he sought
"comparable position[s]" with the Respondent and that
he was blacklisted by the respondent. The Secretary remanded to
the ALJ for consideration of these allegations.
The complainant and the respondent had reached a settlement of an
earlier ERA complaint. Apparently an oral term of the settlement
was (according to the complainant) "reemployment at a
comparable position." The respondent was apparently mislead
about the complainant's education when he previously was employed
as a quality control inspector. Bryant v. Ebasco Services,
Inc., 88-ERA-11 (Sec'y July 9, 1990).
[Editor's note: On remand, the ALJ found that the settlement did
include a promise of reinstatement to a "comparable
position" but not necessarily until layoffs ended and
vacancies arose. Upon consideration of the fact that the
complainant obtained the position by fraud, and maintained that
fraud through the settlement negotiations, and in the
reapplication for employment, the ALJ struck the
"fraudulently procured portions of the settlement agreement
. . ., that is, the continued employment provisions." In
addition, the ALJ found that the educational discrepancy was an
independent basis for discharging the complainant. Bryant v.
Ebasco Services, Inc., 88-ERA-11 (ALJ Feb. 27, 1992).]
Even when an employee has engaged in protected activities,
employers legitimately may discharge for
insubordinate behavior, work refusal, and disruption. On the
other hand, it is normal for employees
engaging in protected activities to exhibit impulsive behavior;
such employees may not be disciplined for
insubordination so long as their behavior is lawful and their
conduct is not indefensible in its context.
Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 (Sec'y Dec. 1, 1994)
(Secretary adopted ALJ's finding that Complainant's behavior did
not impede the orderly operation of
Respondent's business activities).
[Nuclear and Environmental Whistleblower Digest XI B 2 b viii]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; OBTAINING UNAUTHORIZED ACCESS TO MAILING LIST
In Williams v. USDOL, No. 03-1749 (4th Cir. Nov. 18, 2005) (per curiam) (unpublished) (case below ARB No. 01-021, ALJ No. 2000-CAA-15), the Complainant was a school teacher and the Respondent was a school system. The Complainant became concerned that certain school buildings contained unsafe levels of lead and asbestos, and made complaints to regulatory groups and aired her concerns in public forums. After being discharged for the manner in which she had aired her concerns, the Complainant filed employee protection complaints with the Department of Labor under the SDWA, TSCA, CAA, SWDA, CERCLA and FWPCA. The Fourth Circuit Court of Appeals found that substantial evidence supported the Department of Labor's dismissal of the complaint. The court agreed with the Department that, although the Complainant initially engaged in protected activity in raising concerns about lead in schools, important steps had been taken at each school in response to those concerns to ensure the safety of students and staff. The court wrote that "once her concerns were addressed ... it was no longer reasonable for her to continue claiming that these schools were unsafe and her activities lost their character as protected activity." Slip op. at 15. In addition, the court affirmed the Department's finding that even if the Complainant's actions were protected activity, the Respondent had raised a legitimate, non-retaliatory and nondiscriminatory reason for suspending and later dismissing the Complainant -- that she had obtained unauthorized access to the list of names and addresses of parents. One member of the Fourth Circuit panel dissented.
[Nuclear and Environmental Whistleblower Digest XI B 2 b viii]
LEGITIMATE, NON-DISCRIMINATORY REASON FOR DISCIPLINE; INSUBORBINATION; "LEEWAY FOR IMPLUSIVE BEHAVIOR PRINCIPLE" DOES NOT APPLY TO DELIBERATE AND REASONED SARCASM AND SATIRE IN RAISING COMPLAINTS
In Sayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), the Complainant argued that the Respondent could not discipline her for the manner in which she engaged in protected activity, arguing that she had been provoked to use sarcasm and satire in her e-mails, and pointing out that she had had not been malicious, or obscene, or violent. The Complainant relied in this respect on Kenneway v. Matlack, Inc., 1988-STA-20, slip op. at 6 (Sec'y June 15, 1989), in which the Secretary had stated that there was leeway for implusive behavior. The ARB noted that it had recently held that this leeway for implusive behavior standard applies to situations where the complainant is emotionally motivated and the conduct is temporary and uncalculated. Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 1999-STA-37, slip op. at 15 (ARB Dec. 31, 2002), aff'd on other grounds Harrison v. Administrative Review Board, 390 F.3d 752, 759 (2d Cir. 2004). In contrast, the Complainant's conduct in the instant case was more deliberate and reasoned that implusive and uncalculated -- conduct which does not qualify for the "leeway" principle. Since insubordination toward supervisors and coworkers, even when engaged in protected activity, is justification for termination, the Complainant had properly been disciplined for her discourteous and insubordinate manner.
ADVERSE ACTION; REQUIREMENT THAT COMPLAINT FOLLOW AGENCY POLICIES REGARDING COMMUNICATION WITH THE PUBLIC
In Willy v. The Coastal Corp., ARB No. 98 060, ALJ No. 1985 CAA 1 (ARB Nov. 6, 2002), the ARB ordered briefing of the application of common law principles of attorney client privilege in the context of federal whistleblower protection statutes, despite a long procedural history of the case. In Willy, much of Complainant's case was based on divulging a memorandum he had written while in house counsel for Respondent. Respondent argued that use of that memorandum violated evidentiary rules of attorney client privilege/confidentiality and the ethical duty of client confidentiality.
[Nuclear & Environmental Whistleblower Digest XI B 2 b viii] INSUBORDINATION
In Duncan v. United States Secretary of Labor, No. 01 71647 (9th Cir. May 30, 2003) (unpublished) (available at 2003 WL 21259780) (case below ARB No. 99 011, ALJ No. 1997 CAA 12), the Ninth Circuit found that substantial evidence supported the ALJ's finding that Complainant's insubordination, rather than retaliation for whistleblowing activity, was the cause of the Employer's adverse employment decisions.
[Nuclear & Environmental Digest XI B 2 viii]
CAUSATION; LEGITIMATE REASONS FOR ADVERSE EMPLOYMENT ACTION
In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), Complainant had questioned the safety of methods used to test and sterilize devices used to measure the blood pressure of astronauts (and test subjects) for space shuttle missions. At one point, Complainant took matters into her own hands, and, without authorization, moved devices used to measure blood pressure from a clean room into the hall outside next to the trash, thus breaking the chain of traceability and making the devices unusable for an upcoming space shuttle mission. As a result, Respondent had to pay for the destruction of the devices as flight hardware, and was faced with a very short time period to obtain replacements. NASA managers universally reacted to Complainant's action in a negative
fashion, which the ARB found supportive of a conclusion that there was a legitimate reason for
the adverse employment actions taken against Complainant e.g., assignment of duties
that did not include work on devices that would be used on the space shuttle. The ARB found
that Complainant's subsequently being barred from the Space Center was not out of line because
she had at least apparently -- disobeyed a directive not to visit the clean room while the devices
were being worked on. The ARB noted that NASA employees testified that they admired
Complainant's "gumption" in raising the issue, but condemned her unauthorized
property disposal. Finally, the ARB noted that NASA had treated Complainant's concerns
seriously and promptly investigated them. On this record, the ARB concluded that NASA had
not taken adverse employment action based on Complainant's protected activity.
[Nuclear & Environmental Digest XI B 2 b viii]
DUAL MOTIVE ANALYSIS; RESPONDENT'S BURDEN OF PROVING THAT IT
WOULD HAVE DISCHARGED COMPLAINANT EVEN IF COMPLAINANT HAD NOT
ENGAGED IN PROTECTED ACTIVITY; EMPLOYER MAY ASK QUESTIONS OF
EMPLOYEE ABOUT HIS OR HER SAFETY CONCERNS
In Saporito v. Florida Power & Light
Co., 1989-ERA-7 and 17 (ARB Aug. 11, 1998), the only issue was whether
Respondent proved that it would have discharged
Complainant even if he had not insisted on his right to reveal his safety concerns only to the
NRC. In an earlier decision, the Secretary of Labor had held that "[a]n employee who
refuses to reveal his safety concerns to management and asserts his right to bypass the chain of
command' to speak directly with the Nuclear Regulatory Commission is protected [from
discrimination under the ERA]." The Secretary had found Respondent violated the ERA
when it discharged Complainant for three reasons, one of which was his protected refusal to
reveal his safety concerns to managers and his insistence on speaking directly to the NRC.
The ARB agreed with the ALJ's remand determination that Respondent proved that it
would have discharged Complainant for his insubordination in refusing to attend a meeting with
the Site Vice President and refusing to comply with an order to be examined by the designated
company doctor, even if he had not engaged in earlier protected activity.
In regard to Complainant's refusal to meet with the Site Vice President, the ARB found it
significant that despite a clear act of insubordination, Respondent took measures that were
consistent with discipline meted out to other employees in similar circumstances. The ARB
rejected Complainant's argument that by refusing to attend the meeting, he was insisting on his
right to reveal safety concerns only to the NRC because (1) at the time, Complainant never stated
this as a reason for not attending the meeting, and (2) the mere fact that one of the Vice
President's objectives in meeting with Complainant was to ask again about Complainant's safety
concerns did not insulate Complainant from all directives given by his employer. The ARB
found that the instant scenario was not a situation in which an employee's alleged
insubordination was "the result and manifestation of his protected activity." The
ARB held, however, that if the Vice President had again asked about Complainant's safety
concerns, Complainant then might have been justified in refusing to reveal those concerns. The
ARB noted that at the time of the attempted meeting, Complainant had already started to
cooperate with Respondent's outside investigators; thus Complainant's refusal was an abrupt
change.
Complainant cited NRLA authority for the proposition that the order to attend a meeting
tended to coerce Complainant into refraining from exercising his rights under the Act. The ARB
found that one of the factors to be considered is whether the employer had a valid purpose in
questioning the employee, and that in the instant case, the Vice President clearly had a valid
purpose in wanting to question Complainant about his safety concerns: to learn whether any of
those concerns had immediate significance for public health and safety. The ARB held that the
attempt to question Complainant was not an attempt to coerce Complainant to refrain from
contacting the NRC directly about his safety concerns.
In regard to the refusal to be examined by a company doctor, the ARB held that
Respondent had legitimate reasons to require Complainant to submit to such an examination:
that Complainant had refused to attend a meeting with the Vice President because he claimed to
be sick and then took extended sick leave for medical disorders which he asserted were related to
stress.
XI.B.2.b.viii. Refusal to follow safety procedure
In Wood v. Yeargin Construction Co., 79-ERA-3 (ALJ
Oct. 5, 1979), adopted (Sec'y Nov. 8, 1979), Complainant
was properly fired when, in a meeting held to discuss
Complainant's testing of his tools for radiation and he refusal
to have the tools tested by a member of the Radiation Control and
Test (RC & T) Group (as well as verbal abuse of co-workers),
Complainant challenged his supervisor to state which work rule he
violated because he had used the tools in a non-contaminated
area, and did not feel it was reasonable to have to wait for a RC
& T technician.
At the hearing Complainant indicated that he was rightly fired
but for the wrong reason, that is, he admitted he should have
been fired for cussing. The ALJ found that Complainant was fired
because he violated NRC regulations, and because "he
indicated by work and deed that he would not be bound by the
rules." The ALJ took into consideration Complainant's past
history of "gamesmanship" at the plant in challenging
safety regulations and the fact that Complainant's complaint did
not allege any violation of law by Respondent.
XI.B.2.b.viii. Insubordination
Where the record established that the Complainant was fired for a
specific instance of insubordination, and there was nothing in
the record to support an inference that the person who did the
firing knew anything about the Complainant's protected
activities, the Complainant failed to establish a prima facie
case, and his complaint was dismissed.
The Secretary stated:
Although whistleblowers are protected from retaliation
for blowing the whistle, the fact that any employee may have
blown the whistle does not afford him protection from being
disciplined for reasons other than his whistleblowing
activities nor does it given such an employee carte blanche
to ignore the usual obligations involved in an employer-
employee relationship. Dunham v. Brock, 794 F.2d
1037 (5th Cir. 1986). As the court found in Dunham:
"[a]n otherwise protected 'provoked employee' is not
automatically absolved from abusing his status and
overstepping the defensible bounds of conduct." 794
F.2d at 1041 (citations omitted).
Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y
July 26, 1988), slip op. at 8-9.
[Editor's note: Although this dismissal was based on failure to
establish a prima facie case, the casenote is also relevant to
the reason for discharge.]
XI.B.2.b.viii. Insubordination
Respondent articulated a legitimate, nondiscriminatory reason for
the adverse action where its witnesses testified about a number
of incidents in which Complainant raised his voice, showed anger,
and was insubordinate at work (including refusing to review a
statistical report, and refusing to meet with a manager), and
Respondent informed Complainant that he was discharged based on
"performance and behavior, which includes . . . repeated
acts of insubordination." Abu-Hjeli v. Potomac
Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).
XI B 2 b viii Work refusal
In Crosby v. United States Dept. of Labor, No.
93-70834 (9th Cir. Apr. 20, 1995)
(unpublished) (case below 85-TSC-2), the court affirmed the
Secretary's determination that the
Complainant was discharged for proper reasons when he refused to
work on a project because he did
not like the protocol. The court cited the Secretary's work
refusal analysis in Pennsyl v. Catalytic,
Inc., 83-ERA-2 (Sec'y Jan. 13, 1984).
XI B 2 b viii "Insubordination" nothing
more than result and
manifestation of protected activity
Even when an employee has engaged in protected activity, an
employer may legitimately discharge the
employee for insubordinate behavior, work refusal, and
disruption.
In McDonald v. University of Missouri, 90-ERA-59
(Sec'y Mar. 21, 1995), the
Respondent contended that it was the manner in which the
Complainant made her complaints, not the
complaints themselves that led to her discharge. The Secretary
pointed out, however, that the
Complainant never refused work or attempted to disrupt others in
their work, except where actual
violations were at issue. Specifically, the Complainant, a
Postdoctoral Associate, asked a graduate
student to be barred from a research lab for violating NRC
regulations; such a request did not deny
ERA protection merely because it led to tension in the lab
between the Complainant and the graduate
student. The Secretary found the alleged misconduct to be
nothing more than the result and
manifestation of her protected activity, which does not remove
statutory protection.
Asserted legitimate, nondiscriminatory reasons for taking adverse
action against an employee that are
the manifestations of a failure to observe channels (which is
protected activity) do not establish a
respondent's burden of articulation. Thus, in West v.
Systems Applications
International, 94-CAA-15 (Sec'y Apr. 19, 1995), the
Secretary rejected as reasons the
Complainant lack of direct communication with management, and
"low company morale"
resulting from the Complainant's communication with a emissions
coordinator from the company from
which the Respondent had contracted to provide emissions
monitoring.
[Nuclear and Environmental Whistleblower Digest XI B 2 b ix]
CAUSATION; TERMINATION FOR GOING OUTSIDE CHAIN OF COMMAND ONLY UNLAWFUL WHERE THE RESPONDENT HAD BEEN UNRESPONSIVE TO SAFETY CONCERNS OR WHERE THE COMPLAINANT REASONABLY FEARED REPRISAL
In Sayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), the Complainant had been terminated for creating hostility with co-workers. One of the ways cited by the supervisor who made the termination decision in which hostility had been created was the Complainant's practice of telling the company with which her employer had been contracted to supply engineering services about her safety concerns rather than her employer directly. The Complainant argued that she had been unlawfully terminated under Dutkiewicz v. Clean Harbors Envtl. Servs, Inc., ARB No. 07-090, ALJ No. 1995-STA-34, slip op. at 7 (ARB Aug. 8, 1997), aff'd sub nom., Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 24 (1st Cir. 1998), in which the Board had held that "an adverse action taken because an employee circumvented the chain of command to raise a safety issue would violate the employee protection provision." The Board rejected this argument and distinguished Dutkiewicz: "The environmental whistleblower protections do not deprive employers of the right to require employees to tell them immediately about hazardous conditions. This is not a case in which the employee expressed protected safety or environmental concerns outside the chain of command because the company had been unresponsive to the employee's complaints or because the employee reasonably feared reprisals if she took her concerns to supervisors." Sayre, slip op. at 11 (citation omitted).
[Nuclear & Environmental Whistleblower Digest XI B 2 b ix] FAILURE TO FOLLOW CHAIN OF COMMAND IS NOT A LAWFUL REASON FOR ADVERSE ACTION
"[I]t is a long standing principle of whistleblower case law, established by the Secretary and further developed by this Board and the United States Courts of Appeals, that it is a prohibited practice for an employer to retaliate against an employee for not following the chain of command in raising protected safety issues. This chain of command principle is as applicable to communications with a regulating agency like the DOE as it is to the raising of nuclear safety concerns within the employer's organization." Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002) (citations omitted).
[Nuclear and Environmental Digest XI B 2 b ix]
CHAIN OF COMMAND
Under the whistleblower protection provisions of the ERA and similar laws, an employee
may not be disciplined for failing to observe an established chain of command when making
safety complaints. Fabricius v. Town of Braintree/Park Dept.,
1997-CAA-14 @ 4 (ARB Feb. 9, 1999).
[N/E Digest XI B 2 b ix]
PROTOCOL TO NOTIFY MANAGEMENT BEFORE INVITING INSPECTOR TO
WORKSITE
In Odom v. Anchor Lithkemko,
96-WPC-1 (ARB Oct. 10, 1997), Complainant argued that animus toward protected
activity was
shown by his superiors' suggestion that Complainant view a film to refresh his
memory on the
company's procedure for responding to an inspection by a government agency.
This suggestion
was a result of one supervisor's being upset about Complainant's failure to
follow protocol by
notifying a member of management before inviting an inspector into the
building. The ARB
found that this did not show animus where Complainant did not raise his safety
concerns with the
inspector, did not show that the supervisor was perturbed because of any
comment that might
have been mad to the inspector, or that the purpose of the protocol was to
prevent protected
communications between employees and inspectors.
The ARB cautioned, however, that "... an employer may not, with impunity,
fault an
employee for failing to follow the chain-of-command in raising safety or
environmental issues.
Saporito v. Florida Power and Light Co., Case No. 89-ERA-7, 17, Sec.
Decs., June 3,
1994, and Feb. 16, 1995; Pogue v. United StatesDep't of Labor,
940 F.2d 1287,
1290 (9th Cir. 1991)." Slip op. at 8 n.9.
[N/E Digest XI B 2 b ix]
REFUSAL TO DIVULGE SAFETY CONCERNS TO RESPONDENT
In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (ALJ
Oct. 15,
1997), the Secretary had remanded part of the case for consideration under the
dual motive
analysis. On remand, the matter was reassigned to a different ALJ because the
original presiding
ALJ had retired. The newly assigned ALJ reviewed the entire record in detail,
and concluded
that Complainant had engaged in three acts of insubordination that would have
resulted in his
discharge, even in the absence of protected activity. The ALJ, however,
explained that the first
act of insubordination could not be considered by him because it was removed
from the ALJ's
mandate on remand by both the Secretary's original remand order and the
Secretary's order
denying Respondent's motion for reconsideration. Specifically, the Secretary
had held that
Respondent had "violated the ERA when it later discharged [Complainant],
among other
reasons, for refusing to obey [his supervisor's] order to reveal his safety
concerns." The
Secretary had held that Respondent's stated rationale for the order to reveal
safety concerns to be
"disingenuous". The Secretary confirmed this ruling in the order
denying
Respondent's motion for reconsideration, to wit: "I find no basis to
reconsider the June 3
decision that disciplining an employee for refusing to reveal safety concerns
to management
when he is about to report his concerns to the NRC is a violation of the
ERA."
The ALJ, however, believing it to be his judicial responsibility to note his
finding, observed that
the evidence of record indicated to him that the supervisor reasonably
believed that Complainant
had an "obligation to divulge his safety concerns to the licensee, the
entity primarily
responsible for the safe operation of the nuclear plant." The ALJ
recognized that "it
should not be possible for a respondent to vitiate its action which violates
the ERA by merely
arguing that is mistakenly believed its actions were lawful."
Nonetheless, in the instant
context:
The inquiry should more properly focus upon whether a respondent
committed those actions in retaliation for a complainant having engaged
in protected
activity. If a respondent can establish that it took particular action
based on a reasonable
belief as to its a safety obligation, it should matter not that the
belief subsequently turns
out to be legally incorrect because that respondent would have shown that
it did not act
against complainant in retaliation for his engaging in protected
activity.
LEGITIMATE BUSINESS REASONS; CHAIN-OF-COMMAND REQUIREMENTS
MAY UNDERMINE PUBLIC HEALTH AND SAFETY [N/E Digest XI B 2 b 9]
In Leveille v. New York Air National Guard,
94-TSC-3
and 4 (Sec'y Dec. 11, 1995), the ALJ found that the
Complainant's former supervisor gave negative employment
references, not because of the Complainant's protected
activity as an environmental protection specialist (the ALJ
noting that the supervisor was himself concerned with
environmental problems and had conveyed to the Complainant
his intent to seek solutions and the existence of plans
already put into motion), but rather the Complainant's
unwillingness to accept the base's Major General's decision
to work through the New York State Department of
Environmental Conservation rather than involve the National
Guard Bureau.
The Secretary rejected the ALJ's analysis, finding that it
"would condone an employer mandate that all
environmental
complaints be handled internally with no recourse to any
external regulatory agencies, depending upon what the
'person in charge' determined to be the 'correct route'."
Slip op. at 15-16. The Secretary also rejected the ALJ's attempt
distinguish other chain-of-command decisions. The Secretary
wrote:
[A]n employer may not, with impunity, discipline
an employee for failing to follow the chain-of-command,
failing to conform to established channels, or
circumventing a superior, when the employee raises an
environmental health or safety issue.
* * *
Such restrictions on communication -- whether by
the 'person in charge' or through adherence to the
'chain-of-command' -- would seriously undermine the
purpose of the environmental whistleblower laws to
protect public health and safety.
Slip op. at 16-17 (citations omitted).
XI B 2 b ix Insubordination
Where the Complainant and seven other employees had prepared a
list of grievances while away from
their work site for over one hour -- only the last of which
involved a safety issue -- and presented the
list to a supervisor, who then merely glanced at the list and
immediately discharged all eight employees
for insubordination, the Secretary accepted the ALJ's credibility
assessment and found that the
supervisor did not realize the grievance list contained a
safety-related complaint at the time Complainant
was discharged, though he had previously discussed all of the
issues on the grievance list with the
employees. Although Complainant had made safety complaints
throughout his five month employment,
the Secretary agreed with the ALJ that pretext had not been shown
-- that it was inconceivable that all
eight employees would be fired in retaliation for Complainant's
safety related complaints. Seal v.
The American Inspection Co., 92-ERA-6 (Sec'y Mar. 17,
1995), amended (Sec'y Mar.24,
1995).
In Devine v. Blue Star Enterprises, Inc., ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), PDF |
HTM the ARB assumed, for purposes of deciding the Respondent's motion for summary decision, that the Complainant had raised a factual issue about whether he engaged in protected activity, but nonetheless found that the existence of such an issue was not fatal to the Respondent's motion because it was undisputed that the job for which the Complainant had been engaged to perform had come to an end and because it was undisputed that the Complainant lacked the necessary qualifications for the position. In Devine, the Complainant had been engaged as a hazardous waste truck driver and had been dispatched for one or two days of transporting materials from a water purge tank. When the Complainant learned that he did not possess a CPR training requirement, he expressed concern to the Respondent that it had failed to verify that personnel had the required training for assigned tasks. According to the Complainant, when the Respondent ordered him to continue to haul hazardous material, he used his "Stop Work Authority" to shut down the job.
XI.B.2.c. Refusal to rehire based on prior
misconduct and the presence of more qualified
applicants
In King v. Tennessee Valley Authority, 80-ERA-1
(ALJ Mar. 28, 1980, adopted (Sec'y May 20,
1980), Complainant had been discharged from his job
as a painter at a nuclear plant for bringing a firearm onto the
project in violation of a posted job rule. Complainant's
complaint was based on refused re-employment because of
complaints made to the NRC about the quality of certain painting
at the plant. The ALJ found, however, that Complainant had been
refused re-employment for the legitimate reasons of a past
discharge for unsatisfactory conduct in the work area and the
presence of more qualified applicants (on a fourth re-
application, the applicant pool was smaller and Complainant was
re-hired).
[Nuclear and Environmental Whistleblower Digest XI B 2 c]
ADVERSE EMPLOYMENT ACTION/LEGITIMATE NON-DISCRIMINATORY REASONS; REQUIRING UNIQUE DISCLAIMERS ON SCIENTITIFIC PAPERS; FLAWED PEER REVIEW PROCESS; ACTIONS OF SUBORDINATE COLLEGUE; INACTION ON REQUEST FOR INFORMATION ABOUT COMPLAINANT'S QUALIFICATIONS; MONITORING OF WRITINGS WITH POLICY IMPLICATIONS; CONSULTATIONS WITH AGENCY COUNSEL
In Lewis v. Environmental Protection Agency, 2003-CAA-5 and 6 (ALJ June 9, 2004), the Complainant, an EPA scientist, contended that the EPA discriminated against him as a result of his protected activity of publishing articles, making oral presentations and contacting Congress alleging that EPA's policy on sludge was not protective of human health. The Complainant contended, inter alia, that EPA retaliated by requiring that he use unique disclaimers in his writings and speeches, by collaborating against him with his adversaries, by subjecting him to a flawed peer review process, and by disseminating papers that criticized his research and harmed his reputation.
In a detailed recommended decision, the ALJ found that, although the disclaimers requested by EPA may not have been typical of what it required on similar writings, it was not an adverse action because the Complainant had not shown that requiring the disclaimers had an adverse effect or resulted in a tangible consequence, either work related or otherwise. The ALJ wrote that "Although Complainant may have been annoyed at the requests to change disclaimers, annoyance does not reach the level of a material consequence." Slip op. at 56. The ALJ also observed that the proposed changes were accurate and appropriate. The ALJ also found that the Complainant's writings and oral presentations were unique in their level of criticism of EPA policy, and therefore, even if the disclaimers had a tangible job consequence, EPA nonetheless had a legitimate, non-discriminatory reason for requiring such. The ALJ wrote: "EPA has every right to explicitly disclaim endorsement of writings and oral presentations by its employees that significantly criticize EPA policy and even accuse EPA of endangering the public." Slip op. at 56.
In regard to the flawed peer review process, the ALJ determined that Complainant had established no resulting tangible job consequence.
Complainant did establish that a fellow EPA scientist (at a lower grade level) disseminated a "White Paper" which had been prepared by the defendant in a lawsuit in which the Complainant was appearing as an expert witness for the plaintiff. The White Paper was highly critical of Complainant's research regarding an EPA rule on biosolids. The ALJ, however, found that the fellow scientist had no supervisory authority over the Complainant, that the Complainant had not established that supervisors were aware of the dissemination, and that once put on notice of the dissemination, the fellow scientist was counseled. The Complainant contended that he should have been consulted prior to the discipline of the fellow scientist, but the ALJ found that the Respondent's obligation was only to take "prompt remedial action" upon learning of a co-worker's harassing behavior to escape liability -- not to also consult with the Complainant prior to taking the remedial action.
Complainant alleged that EPA violated the whistleblower laws when it failed to respond to inquiries about the White Paper and whether EPA agreed with its contents. The ALJ found that EPA did not have an obligation to respond to such inquiries and even if it did, the Complainant failed to establish a tangible job consequence.
Complainant contended that EPA violated the whistleblower laws when it forwarded all of his scientific and technical writings to headquarters. The ALJ found, first, that the guidance was only to forward writings if it had policy implications, which was consistent with EPA practice generally. Complainant's supervisors also consulted with EPA's Office of General Counsel regarding information they received regarding the Complainant because of his whistleblower allegations. Such consultations were unique to the Complainant. The ALJ found that despite the uniqueness of such consultations, the Complainant had not established that they were adverse employment action, having presented no evidence that such consultations produced tangible job consequences. Moreover, the ALJ concluded that "EPA is entitled to consult OGC to ensure that it is not making discriminatory decisions regarding one of its employees." Slip op. at 65.
[Nuclear & Environmental Whistleblower Digest XI B 2 c]
LEGITIMATE, NON DISCRIMINATORY REASON; COMPLAINANT NOT REHIRED BECAUSE HE DID NOT INTERVIEW AS WELL AS OTHER APPLICANTS
In Higgins v. Alyeska Pipeline Service Corp., ARB No. 01 022, ALJ 1999 TSC 5 (ARB June 27, 2003), Complainant alleged that he was not hired for a position with Respondent because of his previous protected activities. Complainant and 11 other applicants (from a field of over 100 applicants) were interviewed by telephone by a three member panel. The panel scored the applicants and Complainant was not selected for a personal interview with the senior executive, who limited interviews to the top 4 applicants. The ARB determined that the record convincingly showed that Complainant's performance in the interview was so poor that he would not have advanced to the next level under any variation of the scoring by the 3 panelists. The panelists all had previously worked with Complainant; the ARB observed that Complainant did not object to any member being part of the interviewing panel even though he knew of two members' participation several weeks before the interview.
[Nuclear & Environmental Whistleblower Digest XI B 2 c]
LEGITIMATE NONDISCRIMINATORY REASON; BLACKLISTING; OIG INTERVIEW IN INVESTIGATION RELATING TO FECA CLAIM; PRIVILEGED COMMUNICATION
In Pickett v. Tennessee Valley Authority, ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003), Complainant alleged that Respondent blacklisted him when an OIG investigator visited an employer for whom Complainant had worked part time to ask questions relating to an OWCP request for information about the employment needed to determine its potential effect the amount of disability benefits Complainant received under FECA. Complainant alleged that that the visit was in retaliation for a 1999 whistleblower complaint B that the investigation was an "illegal" investigation of his disability claim, and that the investigator had made blacklisting comments during the visit.
The ARB held that TVA established a legitimate, nondiscriminatory reason for the investigator's interview of the employer, as it was properly authorized as a discretionary function within the scope of his authority as an OIG special agent. TVA also argued that its actions were protected under a qualified privilege. The ARB noted that certain factual circumstances of the case met some of the requirements of the common law privilege in defamation for certain communications, but found that in view of its findings of a legitimate, nondiscriminatory reason for the actions, it was not necessary to decide whether such a privilege would apply.
[Nuclear and Environmental Whistleblower Digest XI B 2 c]
REMOVAL FROM EMPLOYMENT AFTER ELIGIBILITY FOR DISABILITY LEAVE EXPIRED FOUND NOT TO CONSTITUTE UNLAWFUL DISCRIMINATION
In Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant was terminated from employment after he had been unable to perform his job for over a year, and it appeared unlikely that he would ever return to work. Respondent presented testimony from a personnel officer that after an employee is still incapacitated after having been in a leave without pay status for over one year, then it is appropriate to initiate a removal action. Respondent also presented credible testimony that the decision to initiate the removal process was based on the Chief of Public Works' recommendation, and that the Chief made that recommendation based solely on the desire to fill the position with a permanent employee and that it had nothing to do with Complainant's protected activities. On this basis, the ARB found that Complainant's termination was not the result of unlawful discrimination.
[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT
ACTION; COMPLAINANT'S EXPRESSION OF PERSONAL IDEAS AS STANCES OF
EMPLOYING AGENCY
In Holtzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999)
(unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held
that Respondent, a state agency, stated a legitimate nondiscriminatory reason for not renewing
Complainant's employment agreement where Complainant on at least three occasions had
embarrassed the agency with personal positions fervently expressed by Complainant as
departmental stances. The court found that the decision not to renew Complainant's employment
agreement was not a muzzling of First Amendment freedoms, but only a curbing of
Complainant's effort to portray his own ideas as official positions of the state agency.
[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION;
LIMITATIONS ON WORK-TIME ASSOCIATION WITH CO-WORKER
In Duncan v. Sacramento Metropolitan Air Quality Management
District,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended
decision that Respondent's directive to Complainant that he was to cease work-time meetings
with a co-worker because of that co-worker's poor performance and attendance (the co-worker
was also a co-Complainant), was fully justified and not harassment or retaliation. The ALJ
found that at the time of the first directive not to associate with the co-worker at work, the only
protected activity that could have prompted such a limitation was two years remote in time, that
the record was clear that the co-worker's performance and attendance were deficient, that there
was little business-related reason for Complainant and the co-worker to spend work time
together, that the co-worker's performance and attendance had been deteriorating, and that the co-
worker's later termination from employment on this ground had been upheld by an arbitrator.
[N/E Digest XI B 2 c]
LEGITIMATE BUSINESS REASON FOR ADVERSE ACTION; COMPLAINANT'S
MANNER OF RAISING HEALTH AND SAFETY COMPLAINTS
In Holtzclaw v. Commonwealth of Kentucky
Natural Resources and Environmental Protection Cabinet, 95-CAA-7
(ARB Feb. 13, 1997), Complainant
became involved in an internal EPA personnel matter during a period on which
he was
"on-loan" to the Commonwealth of Kentucky as a coordinator on
environmental
studies relating
to several geographic areas of the state. Complainant presented a wrong
impression that
Kentucky had taken official positions on the personnel matter or sought
involvement in the
matter. The Board held that even if some of these activities were protected,
Kentucky could
legitimately consider Complainant's manner of raising health and safety
complaints in
determining
whether it would renew Complainant in the coordinator position.
MOTIVE; DECISION NOT TO REHIRE CONTRACTOR WHO DISCOVERED
PROBLEM [N/E Digest XI B 2 c]
In Bartlik v. United States Dept. of Labor,
1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir.
1996)(case below, 88-ERA-15), the Petitioner had been hired as a
"staff augmentee" to analyze fire safety issues at a
nuclear facility. Two weeks after the expiration of his
contract, the NRC announced a surprise inspection. When the
nuclear facility considered forming a review team, and after the
Petitioner's name was put forth for consideration, the Project
Engineer said "I don't want any contractors working on
problems which they discovered."
The Sixth Circuit found that this statement was not direct
evidence of retaliatory discrimination which shifts the burden to
the employer to produce evidence indicating that the adverse
action was motivated by a non-discriminatory purpose. The court,
in fact, found that it was not even enough to establish a
prima facie case. The court found that the decision not
to rehire was not shown on the record in the case to result from
retaliation rather than a legitimate and pragmatic policy
determination. The court wrote: "The goal of hiring a
review team whose members bring a new and fresh perspective to
detected problems may be part of a policy untainted by unlawful
discrimination. Plaintiff has adduced no evidence to belie this
explanation." Bartlik, 1996 U.S. App. LEXIS
394 at *11.
LEGITIMATE BUSINESS REASONS; REMOVAL OF COMPLAINANT IN EFFORT
TO SATISFY NRC POLICY [N/E Digest XI B 2 c]
In Talbert v. Washington Public Power Supply
System,
93-ERA-35 (ALJ Oct. 20, 1995), the ALJ concluded that the
Respondent's very existence depended on it making changes in
personnel and the attitude of its employees in response to
the NRC's finding the Respondent needed to change its
"culture" of operating as though Emergency
Operating
Procedures (EOPs) were advisory only. The NRC considered
the view that EOPs were advisory to be
"blasphemy". The
Complainant, a person with a reputation as a brilliant
engineer, was viewed by at least some of the Respondent's
executives as the principal protagonist of the belief that
engineers and operators had the discretion to depart from
EOPs if they thought best. The Complainant had expressed
his view that following a certain EOP would be wrong and
dangerous at a meeting in which Respondent's executives were
explaining that company policy was that EOPs were "the
law"
and had to be followed rigidly, or changed through a
procedure. The ALJ concluded that "the Respondent's
need to
satisfy the NRC was so compelling that it would have removed
[the Complainant] . . . even if he had never raised the
[issue of EOP safety at the EOP meeting] or later."MOTIVE; PRISON SAFETY [N/E Digest XI B 2 c]
In Delaney v. United States Dept. of Labor, NO.
95-1487 (1st Cir. Nov. 6, 1995) (unpublished) (decision available
at 1995 U.S. App. LEXIS 31284) (administrative case number 90-
TSC-2), a prison official requested that the Respondent, a prison
service contractor, transfer an inmate who was discussing his
concerns about chemical safety in the license plate shop in an
indiscrete manner. The prison official was concerned that other
inmates might react with a work stoppage or other form of
protest. The court affirmed the Secretary's conclusion that the
complaint must be dismissed because the reason for the
Complainant's subsequent transfer was not retaliation for
complaining about safety, but prison security.
NONSELECTION; INADVERTENCE OR INEFFICIENCY [N/E Digest XI B 2 c]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Complainant was not informed
of positions for temporary inspectors until after the close of
the application period. The Respondent presented testimony of an
employment services office employee who stated that she generated
a list of qualified employees by using quality in a word search
of the Respondent's computerized personnel files; by using
quality rather than nuclear she failed to include the name of
the Complainant and other nuclear inspectors. The Secretary
found that this was an adequate explanation -- the list did not
include the Complainant due to inadvertence or, at worst,
inefficiency. The Secretary also noted that the Respondent s
witnesses were exceptionally forthright and did not show animus
toward the Complainant.
XI.B.2.c. Complainant failed to prevent violation
Pooler v. Snohomish County Airport,
87-TSC-1 (Sec'y Feb. 14, 1994)
The Secretary approved the ALJ's Recommended Decision and
Order to deny the complaint.
Although the Complainant sufficiently established an
inference of a causal connection between the Complainant's
protected activities and the adverse action taken against him,
the Respondent met its burden of showing that the adverse action
was motivated by legitimate reasons. The Respondent's position
was that the disciplinary action against the Complainant was
taken not because the Complainant engaged in any protected
activity at all, but because the Complainant did not take
adequate measures to stop or prevent the occurrence of the
violations even though the Complainant knew beforehand that the
violation would occur. Additionally, the Respondent demonstrated
that it was truly concerned with the compliance of the safety
regulation in this and other instances. Thus, the burden shifted
to the Complainant to show that the Respondent's articulated
reason was only a pretext and that the real reason was
retaliation for engaging in the protected activities.
XI.B.2.c. Sleeping on the job
In Bailey v. System Energy Resources, Inc., 89-ERA-
31, 32 (Sec'y July 16, 1993), the Complainants, junior decon
technicians, raised complaints about a change in their work
schedule that required them to assist in smearing and frisking
(decontamination procedures) of tools. One evening shortly
thereafter, Complainants were observed lying on the floor, and
later that evening the plant manager revoked their plant access
privileges, having concluded that they had been sleeping. The
next morning, Respondent's site director decided to fire the
Complainants. Later that day, one of the Complainants contacted
the Nuclear Regulatory Commission to inquire about decon
technicians smearing and frisking tools. Complainants did not
learn that they had been fired until after the contact with NRC.
Complainants contended that the alleged sleeping incident was an
excuse get rid of them because they were raising safety concerns.
The Secretary agreed with the ALJ that Complainants failed to
prove they were engaged in protected activity by making internal
complaints about safety matters (i.e., they did not raise, or
were not perceived as raising, internal safety complaints -- they
were complaining about schedule and duties). In addition, the
telephone call to NRC was made after Complainants had been denied
site clearance, and therefore the inference that protected
activity, much less the likely motive, for the adverse action
could not be raised. Finally, even if a prima facie case had
been established, the adverse action was motivated by a
legitimate, nondiscriminatory reason -- sleeping on the job.
XI.B.2.c. Probationary employee
In Fischer v. Town of Steilacoom, 83-WPC-2 (ALJ May
2, 1983) (settled before the Secretary, see Order
Approving Settlement (Sec'y Dec. 1, 1983), the ALJ found that
although Complainant was a probationary employee subject to
discharge for any reason, he could not be discharged for the
specifically prohibited reason of discrimination.
XI.B.2.c. Psychological profile
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's
clinical psychologist had ample reason to question Complainant's
trustworthiness and reliability and to recommend denial of plant
access under Respondent's established, written policy to
"maintain a continuous behavioral observation program which
is designed to [p]rovide prompt detection of aberrant
behavior" and "[e]xclude an individual displaying such
behavior from the protected, vital areas and restricted areas of
the plant." As such, Complainant failed to establish
pretext, and even for the sake of argument Complainant
established an illegitimate motive, Respondent established by a
preponderance of the evidence that it would have discharged
Complainant even if he had not engaged in protected activity.
XI.B.2.c. Need to discuss complainant's performance with
him (allegation was of harassment)
Where the record established that the complainant had a history
of recurring work-related problems and incidents during his one
year employment contract with the respondent, both before and
after his complaint to the NRC, the evidence demonstrated
legitimate, nondiscriminatory reasons for both the decision to
discharge the complainant after his one year contract expired,
and his being given a below average performance rating. The
documented incidents usually involved the complainant's
argumentativeness and inability or lack of desire to perform work
assignments in a timely manner without close supervision and
repeated instructions. The complainant had been orally
reprimanded several times.
In addition, the respondent showed legitimate, nondiscriminatory
reasons for various discussions and questions raised with the
complainant which the complainant alleged were acts of harassment
prompted by his NRC complaint. The respondent explained that the
conflicts were the result of attempts to find out why the
complainant would not follow instructions and why his work was
slow. The respondent also showed that the supervisors' treatment
of the complainant did not change after the filing of the NRC
complaint.
The complainant had complained to NRC that he was denied access
to work procedures during working hours, which allegedly was a
safety violation.
The complainant failed to establish pretext.
Sellers v. Tennessee Valley Authority, 90-ERA-14
(Sec'y Apr. 18, 1991).
XI.B.2.c. Reorganization
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (ALJ Dec. 14, 1992), the ALJ ruled that
the Respondent failed to articulate a legitimate,
nondiscriminatory reason for reassigning the Complainant. In
Jenkins, there was evidence that the reassignment was
motivated at least in part by the protected activity. The
reason, reorganization, was also found to be pretextual -- it was
clear that the Complainant's conduct was an embarrassment to EPA
and that EPA's intent was to isolate the Complainant.
[Editor's note: The ALJ cited McDonald Douglas and the
"but for" test, but appears to have applied a pretext
test.]
XI.B.2.c. Removal of complainant from area of tension
In Bauch v. Landers, 79-SDW-1 (Sec'y May 10, 1979),
the Secretary adopted the ALJ's conclusion that the Complainant
was not transferred from his position as Water Engineer to Air
Engineer because of the Complainant's protected activity but in
an attempt to eliminate the friction that had developed between
the Complainant and certain of the water authority's client. The
ALJ found that the transfer was a management decision to assure
and maintain effectiveness by its staff in enforcing water system
requirements and not an attempt to resist or frustrate SDWA
provisions. The ALJ started with the premise that the employee
protection provision of the SDWA does not restrict an employer in
its operational decisions, noted instances in the record of the
Complainant's poor attitude and behavior, and instances in which
the Complainant had used weak data to support his recommendations
or advocating strong action when it was not warranted.
XI.B.2.c. Inappropriate behavior at work place
In Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Sept. 7, 1990), the ALJ reviewed the testimony in detail
and concluded that the Complainant had engaged in outbursts that
were entirely inappropriate to the circumstances. He noted that
"[a]lleged discriminatees do not enjoy an unfettered right
to engage in any impermissible activity and then to avoid the
consequences thereof simply because they may have also engaged in
a protected activity."
XI.B.2.c. Complainant's skill; need to have task
completed
Although Complainant testified convincingly that he found a
certain work assignment to be a hot, distasteful assignment, the
Secretary in Pillow v. Bechtel Construction, Inc.,
87-ERA-35 (Sec'y July 19, 1993), found that evidence established
that Complainant's assignment to that task was routine and did
not constitute adverse action based on the testimony of
Complainant's foreman that it was not the worst assignment for
his workers, that some laborers volunteered to do it, and that
after Complainant's layoff he had assigned another laborer to do
the task a similar percentage and duration of time as he had
assigned Complainant to it.
In addition, the Secretary found that even the assignment to the
task was an adverse action, Respondent proffered a legitimate
business reason for the assignment -- the task needed to be done
and Complainant was good at it.
XI.B.2.c. Ineffective leadership
Testimony that the Complainant delegated too much work, often
without following up on what was done, with the result that he
was not considered to be familiar enough with the details of his
work and not to be an effective leader, constitutes evidence of a
legitimate, nondiscriminatory reason for the adverse action
sufficient to rebut the prima facie case. Thompson v.
Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19,
1993).
XI.B.2.c. Temporary transfer of complainant during suit
In Ray v. Harrington, 79-SDW-2 (Sec'y July 13,
1979), the Secretary adopted the decision of the ALJ that the
temporary transfer of the Complainant to a nonsupervisory
position was not an act of discrimination. In Ray, the
Complainant's complaint was based on a series of adverse
employment actions. Apparently, he amended his complaint to
include the transfer. All of the complaints except the transfer
were untimely filed.
The ALJ concluded that it was a permissible business decision to
transfer the Complainant
to avoid the conflict and embarrassment between him and
his immediate supervisors who are defendants in this suit.
* * *
[The Respondent's] evidence furnishes explanation and
good reason to justify [the Complainant's] transfer. It has
a responsibility to provide water and sewer services to
450,000 people irrespective of its engagement in litigation.
The smooth operation of the department is dependent upon the
compatibility of the employees who carry out the duties of
the department. Both sides are vexed by this litigation.
[The Complainant's] immediate supervisors are defendants in
this case, and as such they are both sensitive and
vulnerable to charges real or imagined, which might
interfere with their defenses or the functions of the
department.
This mix of personalities had great potential for
adverse effects on the department. Under the circumstances,
[the Respondent] acted prudently in transferring [the
Complainant] to avoid compounding existing problems pending
the disposition of this litigation.
In the matter [of the Complainant's] reassignment, [the
Respondent] acted within the parameters of its authority as
his employer. The Act does not restrict an employer in its
operational decisions. Management must be able to adjust
employment situations so as to carry out its duties.
[Bauch v. Landers, 79-SDW-1 (Sec'y May 10,
1979)].
[Editor's note: The Complainant was later disciplined and
discharged, and he filed a separate complaint heard by a
different ALJ. The Secretary adopted that ALJ's conclusion that
the additional employment actions were not related to his SDWA
complaints, but resulted from poor performance, personnel
conflicts, and inability to adjust to usual and normal employment
situations. Ray v. Metropolitan Government of
Nashville, 80-SDW-1 (Sec'y Apr. 14, 1980). The ALJ in
the second suit discussed res judicata, but the Secretary did not
address that issue.]
XI.B.2.c. Psychological profile
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's
clinical psychologist had ample reason to question Complainant's
trustworthiness and reliability and to recommend denial of plant
access under Respondent's established, written policy to
"maintain a continuous behavioral observation program which
is designed to [p]rovide prompt detection of aberrant
behavior" and "[e]xclude an individual displaying such
behavior from the protected, vital areas and restricted areas of
the plant." As such, Complainant failed to establish
pretext, and even for the sake of argument Complainant
established an illegitimate motive, Respondent established by a
preponderance of the evidence that it would have discharged
Complainant even if he had not engaged in protected activity.
In St. Mary's Honor Center v. Hicks, ___ U.S. ___
(1993) (available at 1993 U.S. LEXIS 4401), the United States
Supreme Court held that under the McDonnell
Douglas/Burdine allocation of the burdens of proof and
production for Title VII discriminatory-treatment cases, the
trier of fact's rejection of the employer's asserted legitimate,
nondiscriminatory reasons does not entitle the employee to a
judgment as a matter of law. The mere production of evidence of
nondiscriminatory reasons, whether believed or not, rebuts the
presumption of intentional discrimination. Upon articulation of
a reason, the McDonnell Douglas framework becomes
irrelevant and the trier of fact must then decide the ultimate
question of fact.
Although Hicks involved racial discrimination, the
Secretary has adopted the McDonnell Douglas/Burdine
approach to the employee protection provisions adjudicated by the
Department. See Dartey v. Zack Co. of Chicago, 82-ERA-2
(Sec'y Apr. 25, 1983).
[Nuclear & Environmental Whistleblower Digest XI B 3]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS
Once a case has been fully tried on the merits, the ALJ does not determine whether a prima facie showing 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. The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Pickett v. Tennessee Valley Authority, ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003).
[Nuclear & Environmental Whistleblower Digest XI B 3]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS
The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Kester v. Carolina Power & Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003).
[Nuclear & Environmental Digest XI B 3]
PRIMA FACIE CASE ANALYSIS; UTILITY OF IN FULLY LITIGATED CASE
In Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July
13, 2000), the ALJ noted the ARB's position that in a fully litigated case in which the respondent
presents evidence of a legitimate motive for the personnel action, an analysis of a prima
facie case serves no analytical purpose because the final decision will rest on the
complainant's ultimate burden of proof, but stated that "despite some duplication of effort
... working through the prima facie elements [is] useful since the ultimate burden of
proof still involves many of the elements covered in the prima facie analysis. In
addition, if the complainant, even in a fully litigated hearing, fails to establish an element of the
prima facie case, evaluating whether an ultimate burden of proof is met may not serve
any purpose." Slip op. at 33 n.10.
To the same effect: Petit v. American Concrete Products, Inc., 1999-STA-47, slip op. at 3 n.1 (ALJ Apr. 27, 2000).
[Nuclear and Environmental Whistleblower Digest XI B 3]
PRETEXT; JUDGMENT FOR COMPLAINANT CANNOT BE BASED SOLELY ON
DISBELIEF OF RESPONDENT'S PROFFERED REASON FOR ADVERSE EMPLOYMENT
ACTION
In Masek v. The Cadle Co.,
ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ALJ concluded that
Complainant established that Respondent's proffered reason for the adverse employment action
was pretext where the ALJ found that a critical witness for Respondent on the issue of causation
was not credible. The ARB ruled that the ALJ committed an analytical error in this regard. The
Board quoted St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993): "The Court
noted that 'a reason cannot be proved to be 'a pretext for discrimination' unless it is shown both
that the reason was false, and that discrimination was the real reason.' Id. at 515. 'It is not
enough . . . to disbelieve the employer . . . .'"
[Nuclear and Environmental Whistleblower Digest XI B 3]
PRETEXT; DISBELIEF OF EMPLOYER'S STATED REASON FOR ADVERSE
EMPLOYMENT ACTION
In Masek v. The Cadle Co., ARB
No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ARB held that
pretext cannot be shown simply by proof that the employer's stated reason for its action is shown
to be false, relying on St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)
On June 12, 2000, the U.S. Supreme Court issued a decision in a case arising
under the ADEA, Reeves v. Sanderson Plumbing Products, Inc., No. 99-536 (2000 WL 743663 (U.S 2000)), holding that a plaintiff may win an employment discrimination case by presenting a prima facie case of discrimination and discrediting the employer's explanation for its actions.
While the Court stated that to find discrimination "the factfinder must
believe the plaintiff's explanation of intentional discrimination [as well as disbelieving
the employer's version]," Slip op. at 11; 2000 WL 743663 * 9, the Court (slip op. at 11-
12; 2000 WL 743663 * 9) quoted from St. Mary's Honor Center, 509 U.S at 511, as
follows:
"The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accomplished 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."
The Court in Reeves went on to say: "Proof that the
defendant's explanation is unworthy of credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it may be quite persuasive....In appropriate
circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent
with the general principle of evidence law that the factfinder is entitled to consider a party's
dishonesty about a material fact as 'affirmative evidence of guilt.'" (Slip op. at 12; ; 2000
WL 743663 * 9) citations omitted. The Court's explanation continues, and should be read.
Thus, the ARB's decision on this issue in Masek may no longer
represent an accurate statement of applicable law, given the Supreme Court's holding in
Reeves.
[N/E Digest XI B 3]
ELEMENTS OF PRIMA FACIE CASE; NOT TO BE ADDRESSED ONCE
RESPONDENT PRESENTS REBUTTAL EVIDENCE
In Eiff v. Entergy Operations,
Inc., 96-ERA-42 (ARB Oct. 3, 1997), the ALJ had determined in a
Recommended Decision following the hearing that Complainant had failed to make
out a
prima facie case of discriminatory treatment. The ARB, although
affirming all other
aspects of the ALJ's decision, declined to adopt this finding. The ARB wrote:
Where, as here, the respondent has introduced evidence to rebut a
prima
facie case of a violation of the ERA's employee protection provision,
it is
unnecessary to examine the question of whether the complainant
established a prima
facie case.
[N/E Digest XI B 3]
PRIMA FACIE CASE; LACK OF RELEVANCE AFTER CASE IS FULLY TRIED ON
MERITS
Once a case is fully tried on the merits, it is not necessary for the ALJ to
determine whether
the complainant presented a prima facie case. Once the respondent produces
evidence that the
complainant was subjected to adverse action for a legitimate,
nondiscriminatory reason, it no
longer serves any analytical purpose to answer the question whether the
complainant presented a
prima facie case. Rather, the relevant inquiry is whether the complainant
prevailed by a
preponderance of the evidence on the ultimate question of liability. If he or
she did not, it does
not matter whether a prima facie case was presented.
Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar.
31,
1996).
PRIMA FACIE CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[N/E Digest XI B 3]
Once the employer articulates a legitimate,
nondiscriminatory reason for discharging the complainant,
the Couty/McDonnell Douglas framework and its
attendant burdens and presumptions cease to be relevant. At
that point, the onus is on the complainant to prove that the
proffered legitimate reason is a mere pretext rather than
the true reason for the challenged employment action.
Carroll v. U.S. Dept. of Labor, 1996 U.S. App.
LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below 91-ERA-46).See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973);
Couty v.
Dole, 886 F.2d 147 (8th Cir. 1989). The court held
that "[w]hile Couty allows the complainant to
shift the burden of production to the employer by
establishing a prima facie case, the ultimate burden
of persuasion remains with the complainant at all
time."
PRIMA FACIE CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[N/E Digest XI B 3]
The Secretary
has made it clear that once the case has been tried on the
merits, the question whether a prima facie case was
presented is not particularly useful in the analysis. In
Carroll v. U.S. Dept. of Labor, 1996 U.S. App.
LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below 91-ERA-46),
the Eighth Circuit has approved the Secretary's position,
although the court observed the Secretary can focus on the
ultimate issue of whether the complainant proved his or her
case by a preponderance of the evidence "with the
hindsight benefit of a full hearing before the ALJ."
In Jackson v. Ketchikan Pulp Co., 93-WPC-7
and 8 (Sec'y Mar. 4, 1996), the Secretary again focused
attention on whether establishment of the prima facie
case should be analyzed after the respondent has meet its
burden of articulation, except that rather than speaking
generically, the Secretary explicitly addressed the ALJ's
analytical approach. The Secretary stated that "it was
not necessary [for the ALJ] to engage in a detailed analysis
of whether each Complainant established a prima facie
case or whether [the Respondent] produced evidence
sufficient to rebut the prima facie case."
Rather, the Secretary wrote that "[a]fter a case has
been fully tried on the merits, the ALJ's job is weigh all
the evidence and decide whether the Complainants have proven
by a preponderance of the evidence that Respondent
intentionally discriminated against them because of
protected activities." Slip op. at 4-5, n.1.
INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; BURDEN OF
RESPONDENT ONCE DRAWN [N/E Digest XI B 3]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the ALJ drew
an inference of causation from the Complainant s prima
facie case, and ruled that the Respondent had failed to prove
the absence of a causal link between the Complainant s
protected activity and the adverse employment action. The
Secretary held that this was a significant error in allocation of
burden of proof. Rather, it is well established that a
respondent may rebut the prima facie case "by
producing evidence that the adverse action was motivated by
legitimate, nondiscriminatory reasons." The complainant
bears the ultimate burden of proof, and the burden of persuasion
is never placed on the respondent (unless the "dual
motive" analysis applies).
REBUTTAL; COMPLAINANT'S ULTIMATE BURDEN TO ESTABLISH BOTH
PRETEXT AND THE PRESENCE OF INTENTIONAL DISCRIMINATION [N/E Digest XI B 3]
Once a respondent proffers a legitimate nondiscriminatory
reason for taking adverse action and thus successfully
rebuts the presumption of discrimination raised by the prima
facie case, the complainant must prove that the respondent's
reason was not the true reason for the adverse action
and that the protected activity was. Cf. St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993)(Title VII, Civil Rights Act of 1964). Proving only
that the proffered reason was unbelievable does not compel a
finding for the complainant. Rather, the trier of fact must
find intentional discrimination in order for the complainant
to prevail. Leveille v. New York Air National
Guard,
94-TSC-3 and 4 slip op. at 7-8 (Sec'y Dec. 11, 1995).
XI B 3 After trial on the merits, prima facie case
analysis is no longer useful
Once a case has been fully tried on the merits, the answer to the
question whether the complainant presented a prima facie case is
no longer particularly useful. Moreover, the question of whether
a complainant has met the burden of establishing a prima facie
case cannot be answered based on evidence presented by the
respondent. Jopson v. Omega Nuclear Diagnostics,
93-ERA-54 (Sec'y Aug. 21, 1995) (ALJ's analysis technically wrong
when he concluded that the Complainant failed to raise an
inference of causation largely based on the Respondent's evidence
nonetheless, it was clear he evaluated the entire record, and
thus could be affirmed in reaching the conclusion that the
Complainant failed to prove that the Respondent's reasons for
discharging him were pretextual).
XI B 3 Complainant's burden under the ERA is to
demonstrate that protected activity contributed to
the employer's adverse action, not to merely
establish a prima facie showing of causation
In Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y
Aug. 7, 1995), the Secretary held that the amendments made by the
Comprehensive Energy Policy Act of 1992, Pub. L. No. 102-486, 106
Stat. 2776, 3123, to the employee protection provision of the
Energy Reorganization Act of 1974, 42 U.S.C. § 5851, made
only one change in the order and allocation of burdens of proof
and production in ERA hearings.
In 1992, Congress added a new paragraph (3) to 42 U.S.C. §
5851, which provides, among other things, that "[t]]he
Secretary may determine that a violation . . . has occurred only
if the complainant has demonstrated that [protected activity] was
a contributing factor in the unfavorable personnel action alleged
. . . ." 42 U.S.C. § 5851(b)(3)(C). If the
complainant carries that burden, he or she nevertheless is not
entitled to relief "if the employer demonstrates by clear
and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such
behavior." 42 U.S.C. § 5851(b)(3)(D).
In Dysert, the Complainant contended that under
this new standard, if he carries his relatively light burden of
establishing a prima facie case, he has proved discrimination and
the burden then shift to the employer to show by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of such behavior.
The Secretary held that the plain language of the statute places
the burden on the complainant to "demonstrate" that
protected activity contributed to the employer's adverse action,
not to merely establish a prima facie showing of causation. In
the Secretary's view, this does not alter the degree of
persuasiveness by which a complainant must prove his or her case.
Although a few statements by some legislators may have been at
odds with this interpretation, the Secretary noted that the
United States Supreme Court has held that an unambiguous phrase
in a statute cannot be expanded or contracted by the statements
of individual legislators or committees during the course of the
enactment process. West Virginia University Hospitals v.
Casey, 499 U.S. 83, 98-99 (1991).
XI B 3 Complainant's ultimate burden must be meet once
respondent produces evidence of legitimate reason;
prima facie case analysis no longer relevant at
that point
Where a whistleblower case has been fully tried on the merits, it
is not necessary to engage in an analysis of the elements of a
prima facie case. Once the respondent produces evidence that the
complainant was subjected to an adverse action for a legitimate,
nondiscriminatory reason, the answer to the question whether a
prima facie case was presented is no longer useful. If the
complainant has not prevailed by a preponderance of the evidence
on the ultimate question of liability it matters not at all
whether he presented a prima facie case.
Carter v. Electrical District No. 2 of Pinal
County, 92-TSC-11 (Sec'y July 26, 1995).
XI B 3 Secretary's review of prima facie case is not
necessary when respondent
presented rebuttal evidence
Where the Respondent presented evidence to rebut a prima facie
case of an ERA violation, the
Secretary is not required to engage in a lengthy analysis of all
the elements of a prima facie case.
Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15,
1995), petition for review
docketed, No. 95-1729 (8th Cir. Mar. 27, 1995). Yule
v. Burns International Security
Service, 93-ERA-12 (Sec'y May 24, 1995).
To the same effect: Kettl v. Gulf States Utilities
Co., 92-ERA-33 (Sec'y May 31,
1995) (Complainant failed to carry ultimate burden of proof to
show that he was denied training based
on his protected activity).
XI.B.3. Secretary's acknowledgment of Hicks
In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y
Aug. 1, 1993),
the Secretary cited the decision of the United States Supreme
Court in St. Mary's Honor Center v. Hicks, No. 92-602
(U.S. June 25, 1993) (available at 1993 U.S. LEXIS 4401), in
regard to the appropriate burden of proof in whistleblower cases.
The Secretary noted that Dartey was based on Title VII
cases, and St. Mary's Honor Center clarified the burden in
those cases.
To the same effect: Pillow v. Bechtel Construction,
Inc., 87-ERA-35 (Sec'y July 19, 1993) (dual motive case).
XI B 3 Whether prima facie case was
established looses its importance in the analysis once the record is
complete
Once the record is complete in a case, the answer to the question
whether the Complainant presented
a prima facie case is no longer particularly useful. Logic
dictates that if the complainant does not
prevail by a preponderance of the evidence on the ultimate
question of liability, it matters not at all
whether he presented a prima facie case. Carson v. Tyler
Pipe Co., 93-WPC-11 (Sec'y
Mar. 24, 1995) (citing Carroll v. Bechtel Power Corp.,
91-ERA-46 (Sec'y Feb. 15, 1995), slip op.
at 10-11).
XI B 3 Burden of articulation on prima facie case;
failure to carry ultimate burden on
issue
In Sluder v. Detroit Edison Co., 93-ERA-32 (Sec'y
Apr. 13, 1995), the Complainant
made out a prima facie case of protected activity by presenting
evidence that she had complained to a
person in a supervisory capacity about a co-worker's apparent
drinking. To make out a prima facie
case, the Complainant was only required to present evidence
sufficient to prevail until contradicted and
overcome by other evidence.
The Complainant, however, failed to establish by a preponderance
of the evidence that she made a
protected internal complaint. The evidence, rather, indicated
that she had made the observation about
the co-worker in confidence, and expected that it would go no
further.