In Landers v. Commonwealth-Lord Joint Venture, 83-
ERA-5 (Sec'y Sept. 9, 1983), the Secretary adopted the ALJ's
decision approving the ALJ's adoption of the analysis of the NLRB
for dual motive cases stated in Wright Line, A Division of
Wright Line, Inc., 251 NLRB 1-83 (1980), but noted that the
Secretary disagreed with a Seventh Circuit opinion cited by the
ALJ indicating that an employee has to make "a prima facie
showing that [his] protected . . . conduct was a motivating
factor in his discharge, whereupon the burden shifts to the
employer to demonstrate that the employee would have been
discharged even in the absence of the protected conduct."
N.L.R.B. v. Town & Country LP Gas Service Co., 687
F.2d 187, 191 (1982). The Secretary stated that the correct rule
is that the employee must prove "by a preponderance of the
evidence that the protected conduct was a motivating factor in
the employer's action" for the burden of proof or persuasion
to shift to the employer "to show by a preponderance of the
evidence that it would have reached the same decision even in
the absence of the protected conduct." Dean Dartey v.
Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983). [All the
Secretary's emphasis]
[Editor's note: The 7th Circuit published a decision in which it
denied a stay of the Secretary's reinstatement order pending
review by that court. Commonwealth-Lord Joint Venture v.
Donovan, 724 F.2d 67 (7th Cir. 1983). Evidently the case was
resolved in an unpublished decision, of which OALJ does not have
a copy.]
[Nuclear & Environmental Whistleblower Digest XI D 1]
DUAL MOTIVE; EMPLOYER'S BURDEN HIGHER UNDER ERA THAN CAA
Where a complainant has established that protected activity was a contributing factor in an unfavorable personnel decision, Congress has specifically placed a higher "clear and convincing evidence" burden on the employer in ERA whistleblower cases to demonstrate that it would have taken the same unfavorable personnel action in absence of such behavior. In CAA cases, however, the employer's burden is only "a preponderance of the evidence." Martin v. Azko Nobel Chemicals, Inc., ARB No. 02 031, ALJ No. 2001 CAA 16 (ARB July 31, 2003).
[Nuclear & Environmental Whistleblower Digest XI D 1] LAWFUL MOTIVE; IMPROPER MOTIVE UNDER NLRA OR OSHA NOT RELEVANT
In Mourfield v. Frederick Plaas & Plass, Inc., ARB Nos. 00 055 and 00 056, ALJ No. 1999 CAA 13 (ARB Dec. 6, 2002), Complainant argued on appeal that, under the dual motive analysis, the "employer bears the burden to show that it would have taken action without its illegal motives. A 'legitimate' reason is a lawful reason...." The ARB rejected this argument, finding that although an employer's motives may be illegal under other laws, such as the NLRA or the OSHA, the employee protection provisions of the environmental laws only protect employees from retaliation if they have reported safety and health concerned addressed by those environmental statutes.
[Nuclear & Environmental Whistleblower Digest XI D 1] CLEAR AND CONVINCING EVIDENCE; "HIGHLY PROBABLE" STANDARD
In Duprey v. Florida Power & Light Co., ARB No. 00 070, ALJ No. 2000 ERA 5 (ARB Feb. 27, 2003), the ARB concurred with the ALJ's finding that Respondent's articulated reason for demoting the Complainant B excessive absenteeism B was rebutted by inferential evidence showing that Respondent had a retaliatory motive for the demotion. Nonetheless, the ARB also concurred with the ALJ's finding that Respondent had demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of Complainant's protected activity, where Respondent presented evidence demonstrating that managing absenteeism is very important at a nuclear power plant, that Respondent had a progressive discipline policy, that Complainant had exhibited regular and continual excessive absenteeism despite counseling, and that it had not selectively applied its sick leave policy to Complainant or treated other offenders less harshly. The ARB found that Respondent had established that it was "highly probable" that Complainant would have been demoted even if he had not engaged in protected activity. The ARB cited in this respect the decision in Colorado v. New Mexico, 467 U.S. 310, 315 317 (1984) for the proposition that "[c]lear and convincing evidence is that which is 'highly probable' because it would 'instantly tilt [] the evidentiary scales in the affirmative when weighed against [the opposing evidence].'"
[N/E Digest XI D 1]
CONTRIBUTING FACTOR ELEMENT UNDER 1992 ERA AMENDMENTS;
COMPLAINANT'S BURDEN
In Dysert v. Secretary of
Labor,
No. 95-3298 (11th Cir. Feb. 11, 1997) (case below 93-ERA-21), the Eleventh
Circuit addressed
the proper application of the statutory burdens of proof set forth in the
whistleblower protection
provisions of the Energy Reorganization Act (ERA), 42 U.S.C. §
5851(b)(3).
Complainant took the position that the ALJ and the Secretary misapplied the
burdens set forth in
section 5851(b)(3) as amended in 1992, arguing that after the amendments, a
complainant is only
required to make a prima facie showing of discrimination before the burden of
persuasion shifts
to the respondent to prove by clear and convincing evidence that it would have
terminated the
complainant in the absence of his or her protected activity.
The Eleventh Circuit rejected Complainant's position, finding that DOL's
interpretation of
section 5851(b)(3) -- that complainant must make a showing by a preponderance
of the evidence
that his or her protected activity was a contributing factor to the
unfavorable personnel action
alleged in the complaint -- is reasonable and entitled to deference by the
courts.
BURDEN OF PROOF IN ERA AFTER 1992 AMENDMENTS IN TERMINATION
OF EMPLOYMENT CASE; CLEAR AND CONVINCING EVIDENCE STANDARD
[N/E Digest XI D 1]
To prevail, an ERA whistleblower complainant must establish,
by a preponderance of the evidence, that the respondent
terminated his or her employment, at least in part, based on the
complainant's protected activity. Pursuant to the 1992
amendments to the ERA, if the complainant carries this burden,
the respondent may avoid liability only by establishing, by clear
and convincing evidence, that he or she would have been
terminated in the absence of the protected activity. See
42 U.S.C. § 5851(b)(3)(D); Johnson v. Bechtel Const.
Co., 95-ERA-11, slip op. at 2 (Sec'y Sept. 28, 1995);
Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7,
1995), appeal docketedDysert v. Sec'y of Labor,
No. 95-3298 (11th Cir. Sept. 28, 1995); Yule v. Burns Int'l
Security Serv., 93-ERA-12, slip op. at 7-13 (Sec'y May 24,
1995); see generally Grogan v. Garner, 498 U.S. 279 (1991)
(discussing higher clear and convincing evidence standard in
comparison with preponderance of evidence standard in Section
523(a) of Bankruptcy Code case). Timmons v. Mattingly
Testing Services, 95-ERA-40 (ARB June 21, 1996).
CONTRIBUTING FACTOR; RELATIONSHIP TO SHOWING OF PRETEXT
[N/E Digest XI D 1]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Deputy Secretary stated that "[o]ne way for a
complainant to establish that his protected activities were
a contributing factor in the adverse employment action is to
show that the reason the respondent gave for taking the
action was pretextual."
PRETEXT; SHIFTING EXPLANATIONS
[N/E Digest XI D 1]
In Creekmore v. ABB Power Systems Energy Services,
Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the
Complainant showed pretext where the evidence established
that the Complainant was told that he was being laid off
because the Respondent was "getting out of the
business" of quality assurance/quality control,
although it later explained that it was restructuring rather
than getting out of the business.
MIXED OR DUAL MOTIVE CASES; BURDENS OF PROOF; NEED FOR AND
DEFINITION OF DIRECT EVIDENCE
[N/E Digest XID 1]
From Carroll v. U.S. Dept. of Labor, 1996
U.S. App. LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below
91-ERA-46):
Whereas Couty [v. Dole, 886 F.2d 147
(8th Cir. 1989)] and McDonnell Douglas [Corp.
v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668,
93 S. Ct. 1817 (1973)] provide the legal framework in
pretext cases, Mt. Healthy [City Sch. Dist.
Bd. of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d
471, 97 S. Ct. 568 (1977)] and Price Waterhouse v.
Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S.
Ct. 1775 (1989), channel the scope of our inquiry in
mixed motive cases. Mt. Healthy and Price
Waterhouse provide that where the employee has
shown that the challenged employment action was
motivated at least in part by an impermissible
criterion, the burden then shifts to the employer to
prove by a preponderance of the evidence that it would
have reached the same decision even in the absence of
the illegitimate factor.... This type of Mt.
Healthy/Price Waterhouse mixed motive analysis,
however, applies only in "dual motive" cases
where the complainant produces "evidence that
directly reflects the use of an illegitimate criterion
in the challenged decision." Stacks v.
Southwestern Bell Yellow Pages, Inc., 996 F.2d 200,
202 (8th Cir. 1993). Direct evidence means evidence
showing a specific link between an improper motive and
the challenged employment decision. Parton v. GTE
N., Inc., 971 F.2d 150, 153 (8th Cir. 1992).
DUAL MOTIVE [N/E Digest XI D 1]
From Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996):
Under the dual, or mixed, motive doctrine, when the
evidence establishes that discriminatory intent played a
role in an adverse action, the employer may avoid liability
only by demonstrating that the action would have been taken
on the basis of a legitimate motive alone. ... Under the
dual motive analysis, the employer "bears the risk that
the 'influence of legal and illegal motives cannot be
separated. . . .'" Mackowiak, 735 F.2d at 1164
(quoting NLRB v. Transportation Management Corp., 462
U.S. 393, 403 (1983)).... Furthermore, ... the 1992
Amendments to the ERA provide that an employer can escape
liability under the dual or mixed motive analysis only by
presenting clear and convincing evidence that the adverse
action would have been taken in the absence of the protected
activity. Section 211(b)(3)(D) of the ERA, codified at 42
U.S.C. § 5851(b)(3)(D)....
DUAL MOTIVE; WHEN IMPLICATED; COMPLAINANT'S BURDEN [N/E Digest XI D 1]
In Bausemer v. TU Electric, 91-ERA-20 (Sec'y
Oct. 31, 1995), the Secretary declined to apply the dual motive
analysis applied in Mt. Healthy City School Dist. Bd. of Edu.
v. Doyle, 429 U.S. 274, 287 (1977), where the Complainant
"did not prove by a preponderance of the evidence that
Respondent was motivated by an illegitimate reason."
XI D 1 Dual motive; respondent must establish both
that it had a legitimate reason for the adverse
action and that it would have taken the action for
that reason alone
The existence of a legitimate reason for the taking of adverse
employment action against a complainant does not, by itself,
carry a respondent's burden in a dual motive case. Rather, the
record must establish that the respondent would have taken the
action for the legitimate reason alone. SeeMartin
v. The Department of the Army, 93-SDW-1 (Sec'y July 13,
1995) (no evidence that respondent would have reassigned the
complainant for the legitimate reason alone, such as evidence
that the disciplinary rules mandated reassignment for the offense
or that other employees who committed similar offenses had been
reassigned).
XI D 1 1992 amendments to ERA raised burden of proof
for respondent in dual motive analysis
The Comprehensive National Energy Policy Act of 1992 raised the
burden of proof for the respondent
in a dual motive analysis in an ERA whistleblower case. Prior to
the 1992 amendment, where the fact
finder concluded that the complainant has proven that the
employer acted, at least in part, for
retaliatory reasons, the burden shifted to the employer to prove
by a preponderance of the evidence
that, although improper motive played a part in its action, it
would have taken the same action
regarding the complainant even if no improper motive existed.
Under the amended ERA, a respondent
may avoid the ordering of any relief for alleged ERA violation
"if the employer demonstrates by
clear and convincing evidence that it would have taken the same
unfavorable personnel action in the
absence" of the complainant's protected activities. 42
U.S.C. § 5851(b)(3)(D) (emphasis
added by Secretary). The Secretary noted that while there is no
precise definition of "clear and
convincing evidence," the courts recognize that it is a
higher burden than "preponderance
of the evidence" but less than "beyond a reasonable
doubt." E.g., Grogan v.
Garner, 498 U.S. 279, 282 (1991) and Pacific Mutual Life
Ins. Co. v. Haslip, 499 U.S. 1, 22
n.11 (1991). Yule v. Burns International Security
Service, 93-ERA-12 (Sec'y May
24, 1995).
XI.D.1. Complainant must establish prima
facie case before dual motiveanalysis
In Henrey v. Pullman Power Products, Corp., 86-ERA-13
(Sec'y June 3, 1987), the Secretary adopted the findings that
the Complainant had failed to engage in protected activity and
that the management officials involved were unaware of any of
the activities on which he based his complaint. Therefore, the
Complainant did not establish a prima facie case of
discrimination. The ALJ, however, concluded that this case was
governed by dual motive discharge cases. The Secretary found
that this analysis was misleading because in order to utilize
the dual motive analysis, the Complainant first must establish a
prima facie case by showing that (a) he engaged in protected
activity, (b) the employer was aware of the activity and took
adverse action, and (c) the protected activity was the likely
cause for the adverse action. Because the Complainant had failed
to establish the prima facie case, the dual motive analysis was
inappropriate.
XI D 1 Dual motive; preponderance of evidence
burden on respondent
Generally, to establish a prima facie case of retaliatory
discharge, a plaintiff must show that (1) he or
she engaged in protected activity; (2) the employer had actual or
constructive knowledge of the
protected conduct; (3) the alleged discrimination occurred; and
(4) a nexus exists making it likely that
the protected activity led to the alleged discrimination.
[citations omitted]
Where there is evidence of "dual motive", e.g., where
reasons other than retaliation may also
account for the employee's discharge, the employer has the burden
of proving by a preponderance of
the evidence that it would have terminated the employee even if
the employee had not engaged in the
protected conduct. [citations omitted]
Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS
3715 (8th Cir. 1995) (case below
87-TSC-2).
XI D 1 Similarity of employer's burden in dual
motive to affirmative defense
The only variation to the general format for establishing a case
of employment discrimination under the
ERA, in which the complainant carries the ultimate burden of
persuasion, appears when an employee
establishes by a preponderance of the evidence that illegitimate
reasons played a part in the employer's
decision. The employer then has the burden of proving by a
preponderance of the evidence that it
would have taken the adverse action against the employee for the
legitimate reason alone. The
employer's burden in a dual motive case is thus handled much like
an affirmative defense: the plaintiff
must persuade the fact finder on one point and then the employer,
if it wishes to prevail, must persuade
it on another. Sluder v. Detroit Edison Co.,
93-ERA-32 (Sec'y Apr. 13, 1995) (citing
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
XI.D.1. Dual motives
Under Mt. Healthy School Dist. Bd. of Education v. Doyle,
429 U.S. 274 (1977) (Constitutional adverse action case),
if the trier of fact concludes that the employee has proven by a
preponderance of the evidence that the protected conduct was a
motivating factor in the employer's action, the employer, in
order to avoid liability, has the burden of proof or persuasion
to show by a preponderance of the evidence that it would have
reached the same decision even in the absence of the protected
conduct. Mt. Healthy, 429 U.S. at 287; Consolidated
Edison Co. of New York v. Donovan, 673 F.2d 61, 63 (2d Cir.
1982).
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr.
25, 1983).
In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the Complainant had established that protected activity was a contributing factor in his discharge, and the burden had shifted to the Respondent to establish by clear and convincing evidence that it would have taken the adverse action in the absence of the protected activity. The ARB acknowledged that there was evidence in the record that suggested that performance deficiencies and conflicts with management might have lead to the Complainant's termination without regard to protected activity, but that found that the Respondent had not established such by clear and convincing evidence. The ARB noted that a respondent bears the risk that the influence of legal and illegal motives cannot be separated. The ARB found strong evidence of retaliatory motive in the swiftness of the Respondent's moving the Complainant from a performance improvement plan to discharge, without evidence of similar actions toward other employees.
XI.D.1.a. Dual or mixed
motive cases
Once the employee shows that illegal motive played some part in
the discharge, the employer must prove that it would have
discharged the employee even if he or she had not engaged in
protected conduct. In dual motive cases, the employer bears the
risk that the influence of legal and illegal motives cannot be
separated. Pogue v. United States Dept. of Labor,
940 F2d 1287 (9th Cir. 1991).
XI.D.1.a. Wright Line standard for dual
motive cases
From Ashcraft v. University of Cincinnati, 83-ERA-7
(Sec'y Nov. 1, 1988):
The applicable burden of proof standards in a "dual
motive" case arising under the ERA are those standards which
were adopted by the National Labor Relations Board in Wright
Line, a Division of Wright Line, Inc., 1980 CCH NLRB #17,356
(1980), aff'd sub nom., NLRB v. Wright Line, 662 F.2d 889
(1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), and
approved by the Supreme Court in NLRB v. Transportation
Management Corp., 103 S. Ct. 2469 (1983). See
Consolidated Edison Co. of New York, Inc. v. Donovan, 673
F.2d 61 (2d Cir. 1982) (applying the Wright Line standards
in a section 5851 ERA case). See also DeFord v. Secretary of
Labor, 700 F.2d 281, 285 (6th Cir. 1983) (recognizing that
NLRB standards allocating burdens of proof should apply to
section 5851 cases).
The Wright Line test puts upon the employee the initial
burden of proving by a preponderance of the evidence that the
adverse action taken against the employee was the result, at
least in part, of a protected activity. The burden then shifts
to the employer to show by a preponderance of the evidence that
the discharge or other adverse action would have occurred in any
event, regardless of the forbidden motivation.
XI.D.1.a. Risk that motives cannot be separated
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. In such a case, the employer has the
burden to show by a preponderance of the evidence that it would
have taken the same action concerning the employee even in the
absence of the protected conduct. The employer bears the risk
that the influence of legal and illegal motives cannot be
separated.
Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994).
XI.D.1.a. and b. Dual motive test
Where evidence of a dual motive exists, i.e., where reasons other
than retaliation may also account for the employee's termination
with his employer, the employer has the burden to prove by a
preponderance of the evidence that it would have terminated the
employee even if the employee had not engaged in the protected
activity. In a dual motive analysis, it is the employer's
motivation that is under scrutiny. The risk that the illegal and
legal motives behind employee termination merge and become
inseparable is place on the employer. It is not enough that the
evidence proves that the employer, in retrospect, made its
employment decision on legitimate grounds. Passaic Valley
Sewerage Commissioners v. United States Dept. of Labor,
No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App.
LEXIS 7906).
XI.D.1.a. and b. Dual motive test
Where evidence of a dual motive exists, i.e., where reasons other
than retaliation may also account for the employee's termination
with his employer, the employer has the burden to prove by a
preponderance of the evidence that it would have terminated the
employee even if the employee had not engaged in the protected
activity. In a dual motive analysis, it is the employer's
motivation that is under scrutiny. The risk that the illegal and
legal motives behind employee termination merge and become
inseparable is place on the employer. It is not enough that the
evidence proves that the employer, in retrospect, made its
employment decision on legitimate grounds. Passaic Valley
Sewerage Commissioners v. United States Dept. of Labor,
No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App.
LEXIS 7906).
XI.D.1.a. Dual motive
Petitioner sought review of Secretary's dismissal of her
complaint and rejection of an ALJ's determination that the Navy
had unlawfully retaliated against her for engaging in
whistleblowing activity protected under CERCLA, WPCA, RCRA, and
TSCA. The court cited Mackowiak and stated that
"[i]n dual motive cases, the employer bears the risk that
'the influence of legal and illegal motives cannot be
separated....'" The court concluded that the Secretary
failed to separate adequately the influence of the mixed motives
for imposing discipline against petitioner and therefore failed
to meet its burden of proving that the Navy's adverse actions
would have occurred even if petitioner had not engaged in
whistleblower activity. Pogue v. United States Dept. of
Labor, 940 F.2d 1287, 1291 (9th Cir. 1991).
XI.D.1.a. Risk that motives cannot be separated
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. In such a case, the employer has the
burden to show by a preponderance of the evidence that it would
have taken the same action concerning the employee even in the
absence of the protected conduct. The employer bears the risk
that the influence of legal and illegal motives cannot be
separated.
Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994).
XI.D.1.a. Dual motive
Mackowiak v. University Nuclear Sys., Inc., 735
F.2d 1159 (9th Cir. 1984).
The Court of Appeals adopted the Secretary of Labor's findings
that retaliation was at least a motivating factor in the
discharge of Mackowiak, a quality control inspector, and that his
Employer had a legitimate business reason, Mackowiak's bad
attitude, to terminate him. The court found appropriate the
application of the Mount Healthy City School Dist. v.
Doyle, 429 U.S. 274 (1977), test for dual motive discharge
cases which the Supreme Court approved under the National Labor
Relations Act. Once the plaintiff has demonstrated that the
protected activity played a role in the employer's decision, the
burden shifts to the employer to persuade the court that it would
have discharged the plaintiff even if the protected activity had
not occurred. The court then recognized that it makes sense to
allocate the burden of proof to the employer once the employee
has shown that an illegal motive played some role in the
employer's decision. The employer is the wrongdoer who should
bear the risk that the influence of legal and illegal motives
cannot be separated. However, in this case neither the Secretary
of Labor nor the Administrative Law Judge differentiated between
protected and unprotected manifestations of "bad
attitude". Without a serious effort on the part of the
Administrative Law Judge and the Secretary of Labor to sort out
the motives involved, review is impossible.
In Seetharaman v. Stone
& Webster, Inc., ARB No. 06-024, ALJ No. 2003-CAA-4 (ARB Aug. 31,
2007), the Complainant contended on appeal that the ALJ erred when he did not
employ mixed motive analysis and used the same legal standards for both the ERA
and environmental laws. The ARB found, however, that the Complainant failed to
introduce any credible evidence to rebut the Respondent’s evidence that he was
included in a RIF because he was the least productive member of his group.
Thus, he had failed to establish by a preponderance of the evidence that his
protected activity either motivated or contributed to the adverse action, and
therefore the ALJ had no reason to engage in dual motive analysis.
Burden of proof,
generally
Zinn v. University of Missouri, 93-ERA-34,
93-ERA-36 (ALJ May 23, 1994)
A complainant has the initial burden to establish a prima
facie case of discrimination for a protected conduct. The
complainant must show that he engaged in a protected activity,
that the respondent was aware of the protected activity, and that
the respondent took adverse action against the complainant. The
complainant's evidence must raise an inference that the protected
activity was the likely motive for the adverse action, for
example, by showing the proximity in timed of the adverse action
to the protected activity.
After the complainant establishes the prima facie
case, the respondent can rebut the presumption by showing that
the adverse action was motivated by a legitimate reason. If the
respondent successfully rebuts the complainant's prima
facie case, the complainant may then prove that the reasons
proffered by the respondent were not the true reasons for the
adverse action.
However, if the trier of fact determines that a respondent's
adverse treatment of a complainant was motivated both by illegal
and legitimate reasons, then the dual motive test becomes
applicable. Under the dual motive test, the respondent, in order
to avoid liability, has the burden of persuasion to show by a
preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct.
[Nuclear & Environmental Whistleblower Digest XI D 2]
BURDEN OF PROOF; WHEN RESPONDENT'S CLEAR AND CONVINCING EVIDENCE BURDEN IS APPLICABLE
In Belt v. United States Enrichment Corp., ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the ARB corrected the ALJ's erroneous statement of the employer's burden of proof in an ERA whistleblower case. The ALJ had indicated that once a complainant establishes a prima facie case, the respondent "must establish by clear and convincing evidence that it took the unfavorable action for a legitimate, nondiscriminatory business reason, and that it was the same as it would have taken, in the absence of the employee's protected activity." The Board, however, stated that "[o]nce a complainant establishes a prima facie case of discrimination, the respondent needs only to 'articulate some legitimate, nondiscriminatory reason' to 'discharge [its] burden of proof' at this stage of the litigation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)." The Board continued:
The employer's clear and convincing evidence burden is in the nature of an affirmative defense and arises only when the complainant has proven, by a preponderance of the evidence, that the employer discriminated, at least in part, because of protected activity. See Kester v. Carolina Power and Light Co., ARB No. 02 007, ALJ No. 00 ERA 31, slip op. at 8 (ARB Sept. 30, 2003). The ALJ here appears to have confused the Secretary of Labor's gatekeeping, investigative duties with her adjudicative role. Compare 42 U.S.C.A. § 5851 (b)(3)(B) (If, after filing the complaint but before the hearing, an ERA complainant makes a "prima facie" case that his protected activity contributed to the unfavorable personnel action, the Secretary shall not investigate the complaint "if the employer demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of [protected activity].") with 42 U.S.C.A. § 5851 (b)(3)(D)(In the adjudicatory phase of the litigation, if the complainant demonstrates a violation of the ERA, the Secretary may nevertheless not grant relief "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [protected activity]." See also Kester, slip op. at 5 6.
Slip op. at n.2.
[Nuclear & Environmental Whistleblower Digest XI D 2]
DUAL MOTIVE ANALYSIS; TRIGGER BY DIRECT OR CIRCUMSTANTIAL EVIDENCE
In Pafford v. Duke Energy Corp., ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), the ALJ erred in stating: "Where the [ERA] complainant produces direct evidence of discrimination, and the employer does not effectively rebut this evidence, the employer can avoid liability only by showing by clear and convincing evidence that it would have taken the same action in the absence of protected activity." Rather, the ARB has held that "to trigger dual motive analysis, the ERA 'requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial, that the protected activity contributed to the employer's decision.' Kester v. Carolina Power and Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31, slip op. n. 19 (ARB Sept. 30, 2003) (emphasis added). Cf. Desert Palace Inc. v. Costa, 123 S. Ct. 2148 (2003) (Title VII plaintiff not required to present direct evidence of discrimination in order to obtain a mixed motive [dual motive] jury instruction)."
[Nuclear & Environmental Whistleblower Digest XI D 2]
MIXED MOTIVE; NO INVOCATION WHERE ACTIONS WERE NOT SHOWN TO BE ADVERSE OR WHERE ADVERSE ACTION WAS NOT SHOWN TO BE IMPROPERLY MOTIVATED; COMPLAINANT MAY BE ASKED TO IMPROVE FORM OF COMMUNICATION
../../../../Public/Whistleblower/Decisions/ARB_Decisions/TSC/00tsc02b.htm">Dierkes v. West Linn Wilsonville School District
, ARB No. 02 001, ALJ No. 2000 TSC 2 (ARB June 30, 2003), the ARB rejected Complainant's argument that the ALJ had erred in failing to apply the mixed motive analysis where the actions and statements of Respondent complained about by Complainant either did not entail tangible job consequences (and therefore could not be considered adverse action) or where the one adverse job action B imposition of a Goal in Complainant's performance evaluation standards for more professional communication B was not shown to have been imposed because of Complainant's activities as an environmental activist (even though there was temporal proximity). Rather, the record contained a plethora of e mails demonstrating Complainant's recurring problems in interpersonal communications. The ARB also observed that Complainant, a kindergarten teacher who had raised issues about PCBs and asbestos in the school, had sent an e mail to the principal asking what percentage of her alleged communications difficulties he attributed to her activism. The principal responded that while Complainant's "concerns and questions about environmental issues were important in removing PCBs and asbestos from the school, her >demeanor and tone [had] vacillated between calm inquiry and angry outbursts,' and he still would have encouraged her to improve in communicating professionally even if the events of the summer had not occurred." The ARB thus concluded that
The fact that the unprofessional communications encompassed Dierkes' environmental concerns as well as her employment and career issues does not make this a dual motive case. No mixed motive analysis is required because Dierkes has not proven that there was a discriminatory reason for imposing Goal Three.[5]
_________
[5]We note that, consistent with the legitimate non discriminatory reason proffered for imposing Goal Three (i.e., Dierkes' unprofessional pattern of communication), the goal focused on the form of her communications with others, not the content. Dierkes has not shown that the Respondent's rationale was pretextual.
DUAL MOTIVE ANALYSIS; WHEN INVOKED BY DIRECT EVIDENCE
[N/E Digest XI D 2]
The dual motive analysis is used where the complainant produces
"'evidence that
directly reflects the use of an illegitimate criterion in the challenged
decision.' [i.e.,]
evidence showing a specific link between an improper motive and the challenged
employment
decision." Talbert v. Washington
Public
Power Supply System, 93-ERA-35, slip op. at 4 (ARB Sept. 27,
1996), quoting
Carroll v. U.S. Dep't of Labor,
No.
95-1729, 1996 U.S. App. LEXIS 3813 at *9 (8th Cir. Mar. 5, 1996), quoting
Stacks v.
Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 202 (8th Cir. 1993).
In Talbert, the Board continued that "[e]vidence of actions
or
remarks of an employer tending to reflect a discriminatory attitude may
constitute direct
evidence. ... such evidence does not include stray or random remarks in the
workplace,
statements by nondecisionmakers or statements by decisionmakers unrelated to
the decisional
process." Id., slip op. at 4 (citations omitted).
DUAL MOTIVE; CLEAR AND CONVINCING STANDARD UNDER CNEPA
AMENDMENTS TO ERA; WHEN EMPLOYER'S BURDEN ATTACHES
[N/E Digest XI D 2]
Under the CNEPA amendments to the ERA, "the clear and convincing evidence
standard applies only if a complainant establishes by a preponderance of the
evidence that the
adverse action was motivated, at least in part, by retaliatory intent; the
amended Section
211(b)(3) of the ERA heightens an employer's burden of proof only under the
dual, or mixed,
motive doctrine. Section 211(b)(3)(D) of the ERA, codified at 42 U.S.C.
§
5851(b)(3)(D)...." Seater v.
Southern
California Edison Co.,
95-ERA-13, slip op. at 21 (ARB Sept. 27, 1996)(case citations omitted).
DUAL MOTIVE ANALYSIS; WHEN IMPLICATED; EVIDENCE OF HIGH
DEGREE OF PERSONAL ANIMOSITY [N/E Digest XI D 2]
In Frady v. Tennessee Valley Authority, 92-ERA-
19 and 34 (Sec'y Oct. 23, 1995), the Respondent contended that it
declined to fill a position for which the Complainant had applied
based on pressures to downsize. Where the record indicated that
the Complainant had a number of antagonistic exchanges with the
employee who made the decision not to fill the position, the
Secretary concluded that the degree of animus exhibited indicated
that the decision not to fill the position was based at least in
part on discriminatory intent.
XI D 2 Direct evidence of animus
In Harrison v. Stone & Webster Engineering
Group, 93-ERA-44 (Sec'y Aug. 22, 1995), the Secretary
indicated that it was questionable whether the Respondent's
stated legitimate, nondiscriminatory reason for demoting the
Complainant was true -- although it could have been accepted
without more evidence. Since there was direct evidence of animus
against the Complainant, and other circumstances surrounding the
demotion were indicative of a retaliatory motive for the
demotion, the Secretary found that the dual motive analysis was
required.
XI.D.2. Dual motive
Where Complainant did not show that discriminatory motives played
any part in Respondent's adverse performance appraisal, the dual
motive analysis was not applicable. Jain v. Sacramento
Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).
XI.D.2. Dual motive analysis not
applicable
Where there was no direct or circumstantial evidence tending to
prove, in whole or in part, that complainant's subjective charge
that his termination was in retaliation for protected activity
the dual motive analysis was not applicable. St. Laurent
v. Britz, Inc., 89-ERA-15 (Sec'y Oct. 26, 1992), slip op.
at 4, and n.3.
XI.D.2. Direct evidence of discrimination
The order and allocation of burdens of proof and production in
Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25,
1983) are applicable only where circumstantial evidence of
discrimination is presented. If direct evidence of
discrimination exists, and it is not effectively rebutted, a
respondent can avoid liability only by showing it would have
taken the same action in the absence of protected activity.
Blake v. Hatfield Elec. Co., 87-ERA-4 (Sec'y Jan. 22,
1992). Bartlik v. Tennessee Valley Authority, 88-
ERA-15 (Sec'y June 24, 1992), slip op. at 4.
XI.D.2. Relationship between dual motive and
pretext analyses
Where the complainant contends that the employer's motives were
wholly retaliatory and the employer counters that its motives
were wholly legitimate, neither party is relying on a "dual
motive" theory in advancing its case. In this circumstance,
use of the "pretext" legal discrimination model is
appropriate because it focuses on determining the employer's true
motivation rather than weighing competing motivations.
McCuistion v. Tennessee Valley Auth., 89-ERA-6
(Sec'y Nov. 13, 1991). AccordShusterman v. Ebasco
Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
XI.D.2. Dual motive test invoked
If an ALJ concludes that the complainant's termination resulted
in part from engaging in protected activity -- that is, that
there were dual motives -- the complaint could not be dismissed
by the employer merely articulating a legitimate,
nondiscriminatory reason for the termination. Instead, it would
have to show that it would have reached the same decision even in
the absence of protected conduct. Thompson v. Tennessee
Valley Authority, 89-ERA-14 (Sec'y July 19, 1993).
XI.D.2. Dual motive; when implicated
The dual motive test only comes into play if the Complainant
establishes a prima facie case and there is evidence of both
legitimate and improper motives for the adverse action taken
against the Complainant. SeeHenry v. Pullman
Power, 86-ERA-13 (Sec'y June 3, 1987), slip op. at 2.
Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y
July 26, 1988), slip op. at 6.
XI.D.2. Dual motive analysis not applicable
where complainant fails to show that
discriminatory motive played a part
Where the complainant does not show that discriminatory motives
played any part in the respondent's decision to terminate her,
the dual motive analysis is not applicable. See Pogue v.
United States Dep't of Labor, 940 F.2d 1287, 1289-91 (9th
Cir. 1991). Hancock v. Nuclear Assurance Corp.,
91-ERA-33 (Sec'y Nov. 2, 1992), slip op. at n2.
XI.D.2. When implicated
Where the ALJ did not find, and the record contained no direct or
circumstantial evidence tending to prove that the protected
activity played some role in the termination of the complainant's
employment, the dual motive analysis is not applicable.
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at n.4.
XI.D.2. Harmless for ALJ to discuss dual motive
where ALJ also found pretext
An ALJ's discussion of the dual motive analysis is harmless where
the ALJ also analyzed the case under pretext and made an explicit
finding of pretext. Francis v. Bogan, Inc., 86-
ERA-8 (Sec'y Apr. 1, 1988) (dual motive analysis is applicable
only where an employer's adverse action was motivated by two
reasons, one legitimate and one prohibited).
In a dual motive case, one factor cited by the court in finding
that the employer had failed to carry its burden of proving that
the disciplinary action would have occurred in the absence of the
employee's whistleblowing activity was evidence presented that
the disciplinary actions taken against the whistleblower were
substantially disproportionate to discipline imposed by the
employee in the past. Pogue v. United States Dept. of
Labor, 940 F2d 1287, 1291 (9th Cir. 1991).
In Dartey v. Zack Company of Chicago, 82-ERA-2
(Sec'y Apr. 25, 1983), the complainant established by a
preponderance of the evidence that his suspension and discharge
were motivated in part by his protected activity. Id.,
slip op. at 9-10. Nevertheless, the complainant was suspended
after he was found to have about fifteen personnel files of other
Quality Control Inspectors hidden under the driver's seat as he
attempted to leave the plant site. Id., slip op. at 4-5.
The Secretary concluded that no employer need tolerate the
misappropriation of confidential company records. Hence, the
respondent was found to have carried its burden of showing that
it would have suspended and fired the complainant for that
conduct even in the absence of his protected activities.
Id., slip op. at 11-12.
The Secretary noted that courts have given employers considerable
discretion to protect their legitimate interests in
confidentiality, and have upheld the immediate termination of
employees who appropriated records without authority. See
Jeffries v. Harris County Community Action Association, 615
F.2d 1025 (5th Cir. 1980) (Title VII case; employer may act on a
belief (even a wrong belief) that a company policy has been
violated; employee may not appropriate confidential documents
unless he shows that they were in danger of being destroyed
because there are formal legal avenues for obtaining evidence);
Hodgson v. Texaco Inc., 440 F.2d 662 (5th Cir. 1971)
(employee's appropriation of records without permission for use
in lawsuit against employer is not protected activity under the
Fair Labor Standards Act). Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248 (1981) (Title VII case) and Mt.
Healthy School Dist. Bd. of Education v. Doyle, 429 U.S. 274
(1977) (Constitutional adverse action case). He noted that
Mt. Healthy had been applied to section 5851 cases by the
Second Circuit. Consolidated Edison Co. of New York v.
Donovan, 673 F.2d 61 (2d Cir. 1982); Jaenisch v. United
States Dep't of Labor, __ F.2d __ (No.81-4149, 2d Cir. June
28, 1982). Cf. DeFord v. Secretary of Labor, __ F.2d __
(Nos. 81-3228 etc., 6th Cir. Feb. 10, 1983).
In Pooler v. Snohomish County Airport, 87-TSC-1
(ALJ Mar. 10, 1988), Complainant was suspended for five days and
demoted as a result of a dumping incident that he choose to
observe rather than prevent. Complainant learned of plan to dump
possibly toxic substances on Respondent's property by the
maintenance department. Complainant was Airport Public Safety
Supervisor. Rather than to take steps to prevent the dumping,
Complainant choose to observe the dumping from a concealed
location.
The ALJ found that Respondent would have received the suspension
because he deliberately permitted the illegal dumping (apparently
in an attempt to expose wrongdoing by the maintenance supervisor,
who he disliked), despite the fact that Respondent may have also
been motivated in part by Complainant's protected activity of
divulging the incident to the press and outside
agencies.*/
The ALJ found that the subsequent demotion was not based on
Complainant's decision to file a grievance as to the suspension,
but on the discovery by Respondent that Complainant had attempted
to cover up the fact that he knew about the plan to dump the
substances much earlier than he had been saying he had, and on
his earlier gross lapse in judgment in attempting to prove
misconduct rather than to prevent it regardless of the possible
health hazards and in using other employees in the observation of
the dumping. Although part of the reason for the demotion may
have been continuing contact with the media, the ALJ concluded
that these circumstances more than amply supported the decision
to demote Complainant. The ALJ also took into consideration that
the maintenance supervisor was also demoted, and that the events
in the case unfolded over several days so that Complainant's
failure to prevent the dumping could not be ameliorated by the
need for a split second decision.
_________ */ The ALJ had found that upper management's direction to
its employees not to contact the media on their own was an
improper gag order.
[Nuclear & Environmental Digest XI D 3 d]
DUAL MOTIVE; INTERVIEW PROCESS; PRESENCE OF BIASED INTERVIEWER ON PANEL MAY BE OVERCOME BY PROOF THAT SAME CONCLUSION WOULD HAVE BEEN REACHED EVEN IN ABSENCE OF COMPLAINANT'S PROTECTED ACTIVITY
In Higgins v. Alyeska Pipeline Services Corp., 1999-TSC-5 (ALJ Dec. 12, 2000), the ALJ issued a recommended decision finding that circumstantial evidence established that one member of a four member panel who interviewed Complainant for a job was influenced in her scoring of Complainant by her knowledge of Complainant's protected activity. The ALJ therefore evaluated the case under the dual motive test, which requires Respondent to prove by a preponderance of the evidence that it would have reached the same conclusion in the absence of protected activity.. See Dartey v. Zack Company of Chicago, 1982-ERA-2 at 6 (Sec'y, Apr. 25, 1983); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1987). The ALJ detailed the operations of the interview panel which did not discuss scores until completion of all interviews, and concluded that the panelist who was influenced by Complainant's protected activity did not cause Complainant not to be selected for the job. Excluding the one panelist's score, Complainant was still ranked only seventh out of eleven candidates for three jobs. No panelist placed Complainant in the top three. The ALJ noted in accessing the fairness of the selection process that:
The Secretary has noted that "employee protection and anti- discrimination statutes [do] not displace an employer's judgment of what qualities it seeks in its employees and its good faith evaluation of those qualities." Blake v. Hatfield Electric Co., 87-ERA-4, at 8 (Sec'y Jan. 22, 1992). An employer's misjudgment of an applicant's qualifications is relevant insofar as it is "probative of whether the employer's reasons are pretexts for discrimination." Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981) ). The key inquiry is not whether Respondent designed the hiring process perfectly in order to select the "right" applicant but whether the process provided a pretext for discriminatory intent.
[Nuclear & Environmental Digest XI D 3 d]
DUAL MOTIVE; VIOLATION OF CLASSIFICATION REVIEW POLICY
In Graf v. Wackenhut Services, L.L.C., 1998-ERA-37 (ALJ Dec. 16,
1999), pet. for review withdrawn Graf v. Wackenhut Services, L.L.C., ARB Nos. 00-
024 and 25 (ARB Feb. 16, 2000), Complainant was a program manager for the Central Alarm
Station at Rocky Flats Environmental Technology Site, and alleged that adverse employment
action was taken against him in retaliation for his disclosure of site safety and security
information to CBS News. Respondent argued that the adverse employment actions were the
result of Complainant's knowing violation of a Department of Energy classification order (DOE
Order No. 5650.2B requiring pre-disclosure review of potentially classified information), and his
refusal to follow such rules in the future.
The ALJ found that Complainant, although a derivative classifier and possessing a
"Q" level security clearance, was required to follow the DOE Order even though the
disclosures were oral and did not include document disclosure, and despite Complainant's
assertion that the disclosures fell within a "personal opinion" exception. The ALJ
also found, that assuming arguendo that Complainant did not actually violate the DOE
Order, Respondent's managers sincerely believed that Complainant had violated the policy; such
a belief negates a finding of retaliatory motive. See Dartey v. Zack Co. of Chicago,
1982-ERA-2, slip op. at 7 (Sec'y Apr. 25, 1983), citing Jeffries v. Harris County Community
Action Ass'n, 615 F.2d 1025, 1036 (5th Cir. 1980). Moreover, the ALJ found that
Complainant knew he was violating the disclosure rules.
The ALJ noted that Complainant made a compelling argument that Respondent had not
enforced the classification review policy in the past. The ALJ, however, observed that a new
general manager assumed his position several months before Complainant's disclosure, and had
emphasized the importance of following site rules, regulations and policies warning employees
that the rules would now be enforced. The ALJ found Respondent's need to begin enforcing the
DOE classification policy to be compelling. Thus, the ALJ found that the adverse employment
actions were motivated, at least in part, by Complainant's knowing violation of the site disclosure
and classification rule, and his refusal to follow the policy in the future.
The ALJ's analysis, however, continued with a consideration of whether Respondent's
actions were partially motived by Complainant's failure to follow the chain of command. The
ALJ noted case law indicating that an employer's expectation that an employee interact with
others in the company as a "team player" is not, standing alone, a proscribed
criterion; however, where that expectation is extended to a point where it interferes with
protected activity, it is prohibited. Based on the facts of the case, the ALJ held that Respondent's
actions in attempting to encourage Complainant to become part of the team were intended to
dissuade Complainant from engaging in protected activity.
Thus, the ALJ found that Respondent's actions were motivated both by legitimate and
illegitimate motives, and that Respondent had not presented clear and convincing evidence that it
would have taken the same employment actions if Complainant had not engaged in the protected
activity.
[N/E Digest XI D 3 d]
DUAL MOTIVE ANALYSIS; COMPLAINANT INSTIGATED A BRAWL
In Combs v. Lambda
Link,
95-CAA-18 (ARB Oct. 17, 1997), the ARB applied dual motive analysis where Complainant
had
communicated concerns about asbestos exposure to Respondent's CEO prior to Complainant's
discharge, but found "it beyond question that [Complainant's] activity in instigating or
provoking [a] brawl which resulted in his being injured superseded his protected activity and
provided ample independent grounds for his discharge."
CompareAbraham v.
Lawnwood
Regional Medical Center, 96-ERA-13 (ARB Nov. 25, 1997), where
Complainant
was discharged for his excessive response to an poorly timed interruption by his supervisor;
the
ARB held that the complaint did not present a dual motive case because Complainant had not
proved by a preponderance of the evidence that his termination from employment was partially
motivated by protected activities.
DUAL MOTIVE; CLEAR AND CONVINCING EVIDENCE
[N/E Digest XI D 3 d]
In Talbert v. Washington Public Power
Supply
System, 93-ERA-35
(ARB Sept. 27, 1996), Respondent established that it would have transferred
Complainant even
if Complainant had not engaged in protected activity where Complainant's
decisions about
reactor core operators had contributed to an oscillation event (the first in
many years) that
resulted in the reactor core having to be shut down manually. Complainant in
the past had a
strained relationship with the reactor core design group. In evaluating the
oscillation event,
Respondent determined that the groups that operated the reactor and that
designed the reactor
core should have closer cooperation because the question had arisen whether
the event resulted
from operator error or too limited operating margins due to core design.
Complainant's presence
made such cooperation difficult, and the decision was made to transfer him
even though he was
not solely responsible for the strained relationship. The oscillation event
had been very serious;
thus, in its aftermath Respondent had a compelling reason to transfer
Complainant even if he had
never engaged in protected activity.
XI.D.3.d. Inappropriate behavior by
complainant
In Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y
Oct. 6, 1992), the Secretary indicated that even if the
complainant had managed to establish that his protected activity
played a part in his alleged firing (which she had already found
he had not), under the dual motive analysis the respondent had
established that it would have fired the complainant in any event
because of his obscene and highly inappropriate behavior.
Citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(Title VII case).
XI.D.3.d. Respondent's motive is at issue in determining the
reason for adverse action, not Complainant's motive
In Guttman v. Passaic Valley Sewerage
Commissioners, 85-WPC-2 (Sec'y March 13, 1992), the
Complainant was employed by the Respondent, a water treatment
facility, as as the head of a laboratory that analyzed water
samples pursuant to an ad valorem user charge system in
which the users of the facility took their own water samples.
Over a period of years, the Complainant reported extensively to
PVSC officials that the user charge system violated the FWCPA.
The Complainant was subsequently terminated from his employment
with PVSC.
The Secretary held that the ALJ erred in considering the
Complainant's underlying motive for alleging violations in
determining whether the Respondent had a dual motive for
terminating the Complainant. "The FWCPA operates to protect
an employee's conduct in reporting violations of the statute
notwithstanding his motives." It is the Respondent's
motive, not the Complainant's, that is under scrutiny. Upon
finding that the Respondent's action was motivated by legitimate
or illegitimate reasons, it may be determined whether the
Respondent would have taken the same actions against the
Complainant in the absence of the Complainant's protected
activity.
Affirmed by the Court of Appeals for the Third Circuit. 992 F.2d
474 (3rd Cir. 1993).
XI. D. 3. d. Other cases; illustrative cases of dual motive
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), Respondent fired Complainant as one of its in-house
attorneys for failing to report a telephone call to a state
agency and lying about it when asked by his supervisor; the ALJ
found after a hearing that Respondent fired Complainant both
because of his lie about the phone call and because of
Complainant's internal memorandum on Respondent's violations of
the environmental laws.
The Secretary agreed with the ALJ's determination, under the dual
motive analysis, that the Respondent did not carry its burden of
proving that Complainant would have been fired solely for lying
about the phone call had he not engaged in protected activity in
writing the internal memorandum about environmental violations.
XI.D.3.d. Impact of fact that whistleblowing incident
made employer more certain of its decision to
fire
In Drew v. Jersey Central Power & Light Co.,
81-ERA-3 (ALJ June 16, 1982), adopted (Sec'y Jan. 13,
1984), the ALJ concluded that when a performance evaluation was
given to Complainant that was an extraordinary downgrading from
prior evaluations, the reviewer most probably had in mind an
incident several months earlier when Complainant went the NRC
regarding a welding deficiency, but also concluded that there was
amble evidence of record providing good reason for Respondent to
take a careful look at Complainant's performance and to begin a
formal discipline or control process since Complainant had been
for many months a stubborn, headstrong employee. The ALJ found
that this evidence was so strong, that the circumstantial
evidence of a retaliatory motive did not prevail event to
establish a prima facie case. Bearing in mind, however, that the
case law he relied was relatively new, the ALJ also found that
even if a prima facie case was established, the preponderance of
the evidence was that Respondent would have disciplined
Complainant even if he had not engaged in protected activity.
The ALJ quoted the Supreme Court in Mt. Healthy as
follows:
A borderline or marginal candidate should not have the
employment question resolved against him because of
constitutionally protected conduct. But that same candidate
ought not to be able, by engaging in such conduct, to
prevent his employer from assessing his performance records
and reaching a decision not to rehire on the basis of that
record, simply because the protected conduct makes the
employer more certain of the correctness of its
decision.
Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 286 (1977). The ALJ noted that
Complainant's most recent supervisor testified that he knew about
the "whistleblowing" incident, but credibly testified
that he approached Complainant with an open mind and that the
decision to terminate Complainant's employment reflected his
opinion as a responsible supervisor.
To the same effect, see Liverett v. Tennessee Valley
Authority, 82-ERA-1 (ALJ Dec. 16, 1981), adopted (Sec'y
July 21, 1982), in which Complainant was fired several months
after having made a safety complaint, but which was found to have
been based on poor performance and the precipitating event of her
permitting a person without a radiation monitoring badge into a
restricted area. The ALJ indicated that an employee ought not to
be able to prevent an employer from assessing job performance
merely because he or she had at some point engaged in protected
activity.
XI.D.3.d. Complainant's mental instability
Where the record established one instance of a supervisor
exhibiting animus against Complainant for reporting a safety
concern to the NRC, where there was also overwhelming evidence
that Complainant's work place behavior was aberrant, the
Secretary found that Respondent had established that the
requirement for mental stability of the work force at nuclear
facilities justified the actions taken against Complainant, and
that Respondent would have barred Complainant from work in a
nuclear plant and transferred him to a non-nuclear work site
because of that aberrant behavior in the work place, even if
Complainant had not engaged in any protected activities.
Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994).
XI.D.3.d. Dual motive case
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. In such a case the employer has the
burden to show by a preponderance of the evidence that it would
have taken the same action concerning the employee even in the
absence of the protected conduct. The employer bears the risk
that the influence of legal and illegal motives cannot be
separated. [citations omitted]
In Pillow v. Bechtel Construction, Inc., 87-
ERA-35 (Sec'y July 19, 1993), the evidence indicated that
Complainant was transferred from night shift to day shift because
Respondent's managers knew of rumors that Complainant had tipped
off the NRC about some employees' drug use and that threats
against Complainant had been made over the public address system
during the night shift. The Secretary held that protection of an
employee is generally a legitimate management concern.
Nevertheless there was also evidence of another motive for the
shift switch: no one bothered to inform Complainant of the shift
switch until after he missed the day shift and he showed up for
work at the night shift; as a consequence of missing the day
shift Complainant lost some overtime eligibility; Complainant
credibly testified that his superiors threatened him about safety
related complaints and warned him that he was being set for
discharge through the switch to day shift.
Given the failure of Respondent to notify Complainant of the
shift switch and the penalty of loss of overtime eligibility
(even though it was not Complainant's fault for failing to show
up for the day shift), and particularly egregious threats, the
Secretary found that Respondent did not sustain its burden of
showing that would have made the transfer even if Complainant had
not been engaged in protected activity. The Secretary also held
that "Complainant" established that the real reason for
the transfer to day shift was his engaging in protected
activities.
XI.D.3.d. Complainant's mental instability
Where the record established one instance of a supervisor
exhibiting animus against Complainant for reporting a safety
concern to the NRC, where there was also overwhelming evidence
that Complainant's work place behavior was aberrant, the
Secretary found that Respondent had established that the
requirement for mental stability of the work force at nuclear
facilities justified the actions taken against Complainant, and
that Respondent would have barred Complainant from work in a
nuclear plant and transferred him to a non-nuclear work site
because of that aberrant behavior in the work place, even if
Complainant had not engaged in any protected activities.
Mandreger v. The Detroit Edison Co., 88-ERA-17
(Sec'y Mar. 30, 1994).
XI.D.3.d. Employees knew that offense was ground for
discharge
In Janenisch v. Chicago Bridge & Iron Co., 81-
ERA-5 (ALJ July 11, 1983), the ALJ found, under the "but
for" test of the dual motive analysis, that Complainant
would have been discharged even if he had never spoken to a
Nuclear Regulatory Commission inspector. Complainant had failed
to turn in a weld wire. The ALJ found that Respondent
established that this was considered an offense for which an
employee would be terminated and that everyone knew this. There
was testimony that foremen had informed their workers, including
Complainant, that this was an offense that would result in
termination; that safety guidelines provided that welding rods
were to be stored in locked areas; that another person had been
fired the day before for the same reason; that only certain
persons were authorized to touch welding rods; that the
superintendent discussed the situation for about an hour and half
before the firing. The ALJ noted Complainant's presentation of
testimony that welding rods had often been left in the work area,
but dismissed it because in those instances the names of culprits
were not known, and because the evidence was that there was tight
control over rod use.
[Editor's note: The Secretary's final order, if any, is not in
the OALJ or the OAA libraries. The ALJ's earlier decision had
been adopted by the Secretary, but there was an unpublished
remand from the Second Circuit, apparently directing a change in
the legal analysis. I do not have a copy of that order.]
XI.D.2.d. Misconduct
In Sawyers v. Baldwin Union Free School District,
85-TSC-1 (Sec'y Oct. 24, 1994), the Respondent had both a
legitimate and an impermissible reason for bringing disciplinary
charges against the Complainant, and the dual motive analysis
applied. Relying on the ALJ's credibility finding regarding a
school board's member, who the ALJ found to be sincere in
expressing that the only movating factor leading the school board
to file charges against the Complainant was the gravity of the
act involved (tampering with a air quality testing device), the
Secretary determined that the Respondent carried its burden of
showing that it would have brought charges against the
Complainant even if he had not engaged in protected activities.
In Sawyers, the Complainant continually pushed
charges that the school was taking inadequate action to remedy
the presence of asbestos in the schools. He was observed on one
occasion apparently releasing asbestos particles into an air
quality testing device. Analysis of the machine indicated that
it had been tampered with because, inter alia, particles were
found in the device that could not have been airborne.
XI.D.3.d. Poor attitude versus manifestation of protected
activity
In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994), the Respondent maintained that it discharged the
Complainant because of poor work performance and poor attitude.
Reviewing the record, however, the Secretary concluded that what
the Respondent viewed as poor attitude were nothing more than the
result and manifestation of the Complainant's protected activity.
The Secretary stated that the right to engage in statutorily
protected activity permits some leeway for impulsive behavior,
which is balanced against the employer's right to maintain order
and respect in its business by correcting insubordinate acts. A
key inquiry is whether the employee has upset the balance that
must be maintained between protected activity and shop
discipline. See Asst. Sec. and Lajoie v. Environmental
Management Sys., Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip
op. at 10-11, and cases cited therein, appeal dismissed,
No. 92-2472 (1st Cir. Feb. 23, 1993); Kenneway v. Matlack,
Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7.
The Secretary determined that the balance weighs heavily in
Complainant's favor in the instant case. Even if the incident
immediately provoking the discharge involved the use of
intemperate language by Complainant, the incident was private,
was far from egregious, was not indefensible in the context of
the escalating conflict, and thus did not remove Complainant from
statutory protection.
In sum, the Secretary concluded that Complainant's termination
was based solely on his "attitude," which in this case
was a manifestation of his protected complaining. Even if the
decision also was based in part on Complainant's performance
and/or some legitimate attitudinal problems, Respondent failed to
prove that it would have fired Complainant in the absence of his
protected activity that immediately preceded his discharge.
[Editor's note: It is unclear whether the Secretary's
position is that Respondent's articulated reason was not
credible, or that it was pretextual.]
XI.D.3.d. Respondent's actions indicative of lack of
retaliatory motive
In Ashcraft v. University of Cincinnati, 83-ERA-7
(Sec'y Nov. 1, 1988), the fact that Respondent did not act
precipitatively in disciplining Complainant for his refusal to
follow written notification procedures was indicative that its
motives were to gain Complainant's compliance rather than
retaliation. Furthermore, at a disciplinary hearing, the charges
were restricted to matters of competency and efficiency and
specifically excluded any consideration of Complainant's writing
of letters to NRC and other agencies.
XI. D. 3. d. Other cases; illustrative cases of dual
motive
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), Respondent fired Complainant as one of its in-house
attorneys for failing to report a telephone call to a state
agency and lying about it when asked by his supervisor; the ALJ
found after a hearing that Respondent fired Complainant both
because of his lie about the phone call and because of
Complainant's internal memorandum on Respondent's violations of
the environmental laws.
The Secretary agreed with the ALJ's determination, under the dual
motive analysis, that the Respondent did not carry its burden of
proving that Complainant would have been fired solely for lying
about the phone call had he not engaged in protected activity in
writing the internal memorandum about environmental violations.
XI.D.3.d. Protected activity does not prevent
employer from taking legitimate adverse
actions
Where an employer has a legitimate management reason for taking
adverse action against an employee, the employer is not required
to hold off such action simply because the employee is engaged in
protected activity. In Ashcraft v. University of
Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), Complainant
declined to follow, in the case of end users who asked him to
store packages, written procedures for notifying end users that
their radioactive packages were ready for pick up and for
notifying the supervisor when such packages were not picked up on
time because he believed the intent of the notification
requirements had been met. The Secretary held that when and to
whom the procedures should or should not apply was not a matter
within Complainant's responsibility, that it was his duty to
carry out management's instructions, and that when he did so
intermittently, Respondent was not required to let the situation
continue.
XI.D.3.d. Respondent's subjective belief
In Ashcraft v. University of Cincinnati, 83-ERA-7
(Sec'y Nov. 1, 1988), the fact that a charge that Complainant
failed to wipe test the generator was not substantiated by the
record did not establish pretext where Respondent believed that
the failure had occurred and relied on it, even though Respondent
did not investigate the charge.
XI D 3 d Dual motive; clear and convincing evidence of
military style discipline
for disobeying order
In Yule v. Burns International Security Service,
93-ERA-12 (Sec'y May 24, 1995),
the Respondent contended that it discharged the Complainant for
refusing her supervisor's order to
sign a memorandum indicating her understanding of the operation
of a special door lock. Applying the
dual motive analysis and the clear and convincing evidence
standard, the ALJ faulted the Respondent
for not showing that it discharged other employees "who
committed a minor act of insubordinate
conduct."
In reversing the ALJ, the Secretary found that the ALJ had held
the Respondent to a standard higher
than clear and convincing evidence. He rejected the ALJ's
implicit assessment that the Respondent's
examples of other instances involving discharge for refusing to
obey a supervisor's order involved a
less significant or important matter than the order disobeyed by
the Complainant. The Secretary found
the record replete with evidence that the Respondent operated
under a system of military-style
discipline in which disobeying any order was considered a serious
offense. The Secretary
distinguished a prior instance in which the Complainant was not
discharged for insubordination
because it consisted of questioning her supervisor's judgment
rather than refusal of a direct
order.
XI D 3 d Bypassing the chain of command
In Saporito v. Florida Power & Light Co.,
89-ERA-7 and 17 (Sec'y Feb. 16, 1995)
(order denying motion for reconsideration), the Secretary had
issued a decision, and the Respondent
filed a motion for reconsideration. In addition, the Chairman of
the Nuclear Regulatory Commission
wrote to the Secretary expressing his concern regarding the
effect of the Secretary's decision.
The Secretary's decision had been that an employee who refuses to
reveal his or her safety concerns
to management and asserts the right to bypass the 'chain of
command' to speak directly with the
Nuclear Regulatory Commission is protected under the ERA. The
Respondent characterized this
holding as providing an employee with an "absolute
right" to refuse to report safety concerns
to the plant operator, if he plans to inform the NRC of the
safety concerns. The Secretary found this
not to be an accurate interpretation of his holding; rather the
right of an employee to protection for
"bring[ing] information directly to the NRC," and his
duty to inform management of safety
concerns, are independent and do not conflict, although
discerning an employer's motivation when it
disciplines an employee in these circumstances may be difficult.
The Secretary stated that his holding
was that such a factual situation should be reviewed pursuant to
a dual motive analysis, and that the
ALJ did not appropriately examine the case within the dual motive
context. The Secretary noted that
the Respondent will have an opportunity to show it would have
discharged Complainant, even if he had
not insisted on his right to speak first to the NRC, for other
legitimate reasons.
The Secretary observed that his holding was not a direction to
the ALJ to second guess the
Respondent's management decisions. Rather, the ALJ was only to
examine whether, absent the
Complainant's expressed intent to contact the NRC, the Respondent
ordinarily would have fired him for
failing to reveal these concerns or for other reasons, as it
would any other employee.
XI D 3 d Dual motive; Complainant's attitude inseparable
from his protected
activities
When the employer's adverse action against the employee is
motivated by both prohibited and
legitimate reasons, the dual motive doctrine applies. In
Sprague v. American Nuclear
Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), the
Complainant had insisted loudly that he
been given more information about a radiation hazard to which he
had been exposed. The purported
reason for discharge -- the Complainant's attitude -- was
inseparable from his protected activity of
questioning the safety procedures. Thus, the Respondent did not
sustain its burden of showing that it
would have fired the Complainant even if he had not engaged in
protected activities.
