In Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998), Complainants' were found not
to be
entitled to whistleblower protection under section 211 of the Energy Reorganization Act, 42
U.S.C. § 5851, because they deliberately caused a violation of the ERA, and therefore
were barred from protection by section 211(g).
In finding that section 211(g) applied, the ARB considered that Complainants acted
without direction from Respondent, and with reckless disregard for whether their acts would
cause a violation. Complainants had deliberately conducted two unauthorized evolutions, not
required by plant conditions, for the purpose of gathering data to resolve safety issues that
Complainants believed had not been adequately addressed by Respondent. The NRC in a
Notice
of Violation, although acknowledging that the Complainants had exposed errors, found that the
unauthorized evolutions were a violation of the operator's license.
Employer's direction; implied authority
In regard to the finding that Complainants acted without direction, Complainants
acknowledged that Respondent had not expressly directed them to conduct the evolutions, but
argued that they acted under implied authority and therefore with the employer's direction.
The
ARB rejected this argument, finding lack of support in Complainants' contention that the NRC
Notice of Violation had found implied authority or that Employer had acquiesced in similar
conduct in the past. The ARB also rejected Complainant's theory that the duty under their
operator's license "to protect the public and to assist in maintaining the plant at optimum
safety levels" authorized their obtaining hard data to highlight the problem. The ARB
found, rather, that there were other methods for bringing such concerns to higher managers or
to
the NRC, and therefore the duty to protect the public did not constitute implied authority to
conduct the evolutions.
Meaning of "deliberately causes a violation"
The ARB discussed whether section 211(g) contains an element of willfulness --
concluding that it does -- and whether section 211(g) requires specific intent -- concluding that
it
does not. Thus, the ARB held that "to establish a valid Section 211(g) defense, a
respondent must show that a complainant willfully or recklessly caused a violation of the ERA
or
the Atomic Energy Act, that is, that the complainant acted with knowledge or with reckless
disregard of whether his or her act would cause a violation." 96-ERA-22 @ 13. The
ARB
concluded that Complainants did not have actual knowledge that the evolutions would cause a
violation of the ERA or the Atomic Energy Act. Nonetheless, because Complainants could
have
brought their concerns to higher level managers and to components of the NRC, the ARB
concluded that they had acted recklessly. The ARB also considered in making this conclusion
that, Complainants, if they sincerely believed that their actions were consistent with procedures
encouraged by Respondent, could have easily sought approval for the evolutions; that
Complainants were well aware of the danger; that the NRC, although acknowledging
Complainants' acts had a salutary effect, concluded that this effect did not excuse the risk
taking;
and that "[n]uclear power is 'one of the most dangerous technologies man has invented.'
Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir. 1986) (Edwards,
concurring)." 96-ERA-22 @ 14.
[Nuclear and Environmental Whistleblower Digest XIX] DELIBERATE VIOLATION; BURDEN OF PROOF
In ERA whistleblower cases, an employee "who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended" forfeits his or her whistleblower protection. 42 U.S.C.A. § 5851(g). This is an affirmative defense on which the employer bears the burden of proof by a preponderance of the evidence. In Hibler v. Exelon Generation Co., LLC, ARB No. 05-035, ALJ No. 2003-ERA-9 (ARB Mar. 30, 2006), PDF the ARB agreed with the ALJ's finding that the Employer had proved by a preponderance of the evidence that the Complainant's false certification of weld inspections had been without direction from his employer, and had been a deliberate violation of NRC regulations promulgated pursuant to the ERA and the Atomic Energy Act. Thus, the Complainant was precluded from relief under the ERA whistleblower provision. The ARB agreed with the ALJ that, in view of this finding, it was not necessary to determine whether the Complainant had established a violation of the ERA whistleblower provision.
[Nuclear and Environmental Whistleblower Digest XIX]
COMPLAINANT'S DELIBERATE VIOLATION OF ERA PRECLUDES LITIGATION OF HIS ERA WHISTLEBLOWER CLAIM
In Hibler v. Exelon Generating Co., LLC, 2003-ERA-9 (ALJ Dec. 15, 2004), the Respondent's closing brief asserted that the Complainant was precluded from pursuing his claim because he deliberately engaged in a violation of regulatory requirements by knowingly falsifying weld inspection records, presenting in support of this assertion an NRC Report. The ALJ agreed with the Respondent's contention, finding that the Complainant was ineligible for the whistleblower protections of the ERA because the preponderance of the evidence showed that he deliberately caused a violation of the Act and/or the Atomic Energy Act. See 42 U.S.C. 5851(g); 29 C.F.R. § 24.9; Fields v. Florida Power Corp., 1996-ERA-22, n.3 (ARB Mar. 13, 1998); James v. Ketchikan Pulp Co., Case No. 1994-WPC-4 (Sec'y Mar. 15, 1996), slip op. at 6. The ALJ therefore made no findings regarding the merits of the claim, and recommended that the ARB dismiss the complaint.
In making this finding, the ALJ observed that it was the Respondent's burden to establish section 5851(g) ineligibility by a preponderance of the evidence. The ALJ found that the three relevant questions were:
(1) Did the Complainant violate the ERA or the Atomic Energy Act? The evidence of record and the NRC's report established this element.
(2) Did the Complainant do so deliberately? The ALJ cited ARB authority to the effect that the Respondent must show that the complainant acted with knowledge or with reckless disregard of whether his or her act would cause a violation. Fields, supra. The ALJ conceded that this was a difficult determination to make, but after thoroughly reviewing the testimony and documentary evidence from the hearing was convinced that a preponderance of the evidence showed that the Complainant knowingly falsified weld records in a deliberate violation of federal law.
(3) Did the Respondent or any agent thereof direct the Complainant to commit the violation? Although there was evidence that the Respondent forcefully directed the Complaint to perform the inspections, there was no evidence that the Respondent directed the Complainant to falsify inspection records.
[Nuclear & Environmental Digest XIX]
COMPLAINANT WHO DELIBERATELY CAUSES VIOLATION OF ERA
In Fields v. U.S. Dept. of Labor Adm. Review
Bd., No. 98-2614 (11th Cir. Apr. 21, 1999) (per curiam) (case below
1996-ERA-22), the court affirmed the decision of the ARB to accept the ALJ's recommendation
of summary decision (following an evidentiary hearing) dismissing the complaint based on
undisputed and overwhelming evidence that Complainants' had acted deliberately and without
direction from Respondent's management when they twice conducted unauthorized tests on the
nuclear reactor which triggered the alarm light. Although Complainants may have had a good
motive of trying to obtain data to show that Respondent had not adequately addressed their safety
concerns, the court held that "it is clear that petitioners' unauthorized frolics were just what
Congress envisioned when it made the whistleblower statute inapplicable to "any employee
who, acting without direction from his or her employer (or the employer's agent), deliberately
causes a violation of any requirement of this chapter . . . ." Section 211(g), 42 U.S.C.
5851(g).
[N/E Digest XIX]
SECTION 211(g) AFFIRMATIVE DEFENSE; BURDEN OF PROOF
Section 211(g) provides an affirmative defense on which the respondent bears the burden
of proof. Fields v. Florida Power
Corp., 96-ERA-22 (ARB Mar. 13, 1998).
DELIBERATIVE VIOLATION AS BAR TO SUIT UNDER CAA
[N/E Digest XIX]
In Dotson v. Anderson
Heating & Cooling, Inc., 95-CAA-11 (ARB
July 17, 1996), the Board adopted the ALJ's findings that
Complainant was not protected by the Clean Air Act because he
deliberately violated the Act by cheating on an EPA required
examination, and that Respondent did not direct him to do so. 42
U.S.C. § 7622(g).
[N/E Digest XIX]
COMPLAINANT'S DELIBERATE VIOLATION OF THE ERA OR AEA AS AN
AFFIRMATIVE DEFENSE
In Fields v. Florida Power Corp., 96-ERA-22 (ALJ Mar. 11, 1997),
the
ALJ recommended the dismissal of three whistleblower complaints based on 42
U.S.C. §
5851(g), which serves as a bar to an ERA claim once it is determined that the
complainant
caused a deliberate violation of the ERA or AEA. The ALJ reviewed the
pertinent statutory
language, statutory history, caselaw, competing policy considerations, and
principles of statutory
construction, to reject Complainant's contention that § 5851(g) requires
that a complainant
know his or her acts are illegal. The ALJ, however, concluded that a
Respondent has the burden
of proving § 5851(g) as an affirmative defense, and must prove (1) that
the act was done
without direction from the employer, (2) that the complainant deliberately did
the act, and (3)
that the act caused a violation of ERA or AEA requirements.
XIX Deliberate violation; inadequate proof
In Dean & Lamb v. Houston Lighting & Power
Co., 93-ERA-7 and 8 (ALJ Apr.
6, 1995), two Complainants alleged that they were terminated from
employment because they had
expressed concerns both internally and to the Nuclear Regulatory
Commission about breaches of
security at a nuclear facility owned and operated by the
Respondent.
About one year after his termination from employment with the
Respondent, Complainant Dean was
discovered apparently to have had possession of a Safeguards
Information document that was subject
to secure handling procedures. The Respondent moved to dismiss
based, first, on a subsection of the
whistleblower provision of the ERA that bars redress for a
whistleblower who has caused a deliberate
violation of any nuclear safety requirement, §210(g), and
second, based on the legal doctrine of
"after-acquired evidence" which some courts at the time
the motion had been filed permitted
a complete defense to a discrimination complaint based on the
discovery of employee wrongdoing that
would have lead to his or her discharge on lawful and legitimate
grounds had the employer known of it
at the time of the adverse employment action.
In regard to the first ground for dismissal, the ALJ found that
there was insufficient evidence to conclude
that Dean's possession of the document was a
"deliberate" violation of the ERA or the
Atomic Energy Act. In regard to the "after acquired
evidence" ground for dismissal, the ALJ
noted that the Supreme Court had recently issued
McKennon v.
Nashville Banner Publishing
Co., 115 S. Ct. 879 (1995), in which the Court held that
an
employee who proves a discriminatory
discharge is not barred from all relief if the employer,
subsequent to the discharge, discovers evidence
of wrongdoing that, by itself, would have led to the employee's
discharge on lawful and legitimate
grounds had the employer known of it at the time of the
discharge.
[Editor's note: The ALJ did not explicitly
discuss what McKennon left intact
of the after acquired evidence doctrine: that after acquired
evidence of employee wrongdoing is
still relevant in regard to the scope of the remedy. It is
clear, however, that the ALJ's
recommended decision is premised on this part of the
after-acquired evidence
doctrine.]
The ALJ concluded that although the Complainant's possession of
the document was a technical
violation, the Respondent would have fired Dean had it known he
possessed it (Dean had already been
placed on probationary status for prior negligence with
Safeguards information).
Thus, although the ALJ found both Dean and Lamb to be entitled to
relief, he did not recommend
reinstatement of Dean, and recommended limiting Dean's
entitlement to back pay to the date the
possession of the Safeguards document was discovered and
confirmed by the Respondent as a
Safeguard's document. In contrast, the ALJ recommended ordering
reinstatement of Lamb to his
former position or to a substantially equivalent one, and payment
of back pay "until the date
paid".
XIX INTENTIONAL VIOLATION; DENIAL OF RELIEF TO COMPLAINANT
Where the Complainant participated in cheating on a EPA
mandated CFC certification test, the ALJ recommended that the
complaint be dismissed pursuant to 42 U.S.C. § 7622(g). The
ALJ rejected the Complainant's argument that the Complainant
should be allowed to prevail so as not to discourage other
wrongdoers from coming forward if they have a change of heart.
Although the ALJ recognized that "the policy behind this
argument has current," he concluded that "[a]n
intentional violator who experiences a change of heart is the
only class of persons to whom subsection (g) could apply."
Dotson v. Anderson Heating and Cooling, Inc., 95-
CAA-11 (ALJ Oct. 2, 1995).
XIX. Denial of relief when complainant engages in
deliberate safety violation
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), the ALJ's recommended that all relief be denied to
Complainant because Complainant lied in his testimony about his
employment and income since the date of discharge by Respondent.
The ALJ held that
"[w]here a party has knowingly presented misleading
evidence, forfeiture of that party's remedy is required to
further the policy of the Act . . . [and] to safeguard the
integrity of the adjudicative process. . . . [A]s a result
of his attempted subversion of this proceeding, Complainant
has forfeited his right to damages . . . .
The Secretary disagreed that misleading testimony about
mitigation of damages requires denial of all relief.
First, the Secretary noted that the Clean Air Act states that if
the Secretary determines that a violation has occurred, he or she
shall order certain types of relief, including
"compensation (including back pay)". 42 U.S.C. §
7622(b)(2)(B).
Second, even assuming there is some discretion to deny or limit
back pay for reasons not directly related to the actual amount of
damages suffered by an employee, the Secretary concluded that
denial of back pay would not be appropriate in the instant
proceeding.
The Secretary noted a distinction in parallel NLRA authority that
between denial of reinstatement where a complainant lies to his
employer or at the hearing, and denial of an award of back pay.
Those cases indicate that it does not serve the policy of the
NLRA to force an employer to rehire a deceitful employee.
SeeIowa Beef Packers, Inc. v. NLRB, 331 F.2d 176,
185 (8th Cir. 1964); NLRB v. Coca Cola Bottling Co., 333
F.2d 181, 185 (7th Cir. 1964); NLRB v. Brookshire Grocery
Co., 919 F.2d 359, 364-65 (5th Cir. 1990); NLRB v.
Laredo Packing Co., 730 F.2d 405, 407 (5th Cir. 1984)
(distinguishing order for back pay only from reinstatement).
The Secretary concluded that the central purpose of the
environmental whistleblower laws, to protect whistleblowers and
in so doing to protect public health and safety, would be
frustrated if all relief were denied even though the Secretary
has found a violation. The remedial provisions of these acts
are, in this respect, more analogous to the antiretaliation
provisions of other statutes and other antidiscrimination laws
such as the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)
(1988); Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-3 (1988), or the Age Discrimination in Employment
Act, 29 U.S.C. § 623(d) (1988).
See Goldberg v. Bama Mfg. Corp., 302 F.2d 152
(5th Cir. 1962) (when a district court denied both
reinstatement and back pay to an employee who was discharged
for reporting wage and hour violations to the Department of
Labor Wage and Hour Division because the complainant was an
incompetent, dishonest employee, the Fifth Circuit reversed
the denial of back pay relief); Kneisley v. Hercules,
Inc., 577 F. Supp. 726 (D. Del. 1983) (where the
plaintiff had falsified travel and expense reports for
company trips, considerations of employer-employee
compatibility are irrelevant to a back pay award).
The Secretary concluded that in the instant proceeding, denial of
all back pay also would have the effect of undermining the acts'
antidiscrimination objectives, particularly because Complainant's
misconduct took place long after he was employed by Respondent.
Having violated the acts, Respondent would in effect gain a
windfall as a result of Complainant's post employment deception,
which could undermine the confidence of other potential
whistleblowers that they will be protected because the Department
of Labor "allowed the employer to get away with it scot
free." Goldberg v. Bama Mfg. Corp., 302 F.2d at 156.
While the Secretary shared the ALJ's concern that the integrity
of the adjudicatory process is threatened when witnesses lie
under oath, balancing the considerations discussed above, he
found that denial of back pay would not be appropriate in this
case.
The Secretary noted that the matter of dishonesty could be
referred to the appropriate United States Attorney's Office or
bar disciplinary committee.
XIX Affirmative defense -- burden on
Respondent
Jackson v. Ketchikan Pulp Company, 93-WPC-7,
93-WPC-8 (ALJ Mar. 10, 1994)
A respondent has the burden of proof on the affirmative
defense that a complainant deliberately violated the WPCA, 33
U.S.C. § 1367(d). In order to prove a violation of the
WPCA, the respondent must prove two elements: 1) that the
complainant discharged a pollutant into the navigable waters of
the United States, and 2) that such discharge did not comply with
the company's permit conditions.
XIX Absence of proof of "deliberate"
violation
In Drew v. Jersey Central Power & Light Co.,
81-ERA-3 (ALJ June 16, 1982), adopted (Sec'y Jan. 13,
1984), the ALJ held that Respondent's contention that the
complaint should be dismissed as a matter of law under 42 U.S.C.
§ 5851(g) was without merit because there was no substantial
evidence that Complainant deliberately caused any
violation or requirement of the law.
XIX Denial of relief where whistleblower
deliberately commits a safety violation
Section 210(g) of the Energy Reorganization Act of 1974, as
amended, 42 U.S.C. § 5851(g), denies relief for retaliation
where the whistleblower deliberately commits a safety violation
only in regard to the remedy provided by section 210(a); it does
not bar state-law tort actions. English v. General
Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270,
2280 (1990).
XIX. Denial of relief when complainant engages in deliberate
safety violation
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June
1, 1994), the ALJ's recommended that all relief be denied to
Complainant because Complainant lied in his testimony about his
employment and income since the date of discharge by Respondent.
The ALJ held that
"[w]here a party has knowingly presented misleading
evidence, forfeiture of that party's remedy is required to
further the policy of the Act . . . [and] to safeguard the
integrity of the adjudicative process. . . . [A]s a result
of his attempted subversion of this proceeding, Complainant
has forfeited his right to damages . . . .
The Secretary disagreed that misleading testimony about
mitigation of damages requires denial of all relief.
First, the Secretary noted that the Clean Air Act states that if
the Secretary determines that a violation has occurred, he or she
shall order certain types of relief, including
"compensation (including back pay)". 42 U.S.C. §
7622(b)(2)(B).
Second, even assuming there is some discretion to deny or limit
back pay for reasons not directly related to the actual amount of
damages suffered by an employee, the Secretary concluded that
denial of back pay would not be appropriate in the instant
proceeding.
The Secretary noted a distinction in parallel NLRA authority that
between denial of reinstatement where a complainant lies to his
employer or at the hearing, and denial of an award of back pay.
Those cases indicate that it does not serve the policy of the
NLRA to force an employer to rehire a deceitful employee.
SeeIowa Beef Packers, Inc. v. NLRB, 331 F.2d 176,
185 (8th Cir. 1964); NLRB v. Coca Cola Bottling Co., 333
F.2d 181, 185 (7th Cir. 1964); NLRB v. Brookshire Grocery
Co., 919 F.2d 359, 364-65 (5th Cir. 1990); NLRB v.
Laredo Packing Co., 730 F.2d 405, 407 (5th Cir. 1984)
(distinguishing order for back pay only from reinstatement).
The Secretary concluded that the central purpose of the
environmental whistleblower laws, to protect whistleblowers and
in so doing to protect public health and safety, would be
frustrated if all relief were denied even though the Secretary
has found a violation. The remedial provisions of these acts
are, in this respect, more analogous to the antiretaliation
provisions of other statutes and other antidiscrimination laws
such as the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)
(1988); Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-3 (1988), or the Age Discrimination in Employment
Act, 29 U.S.C. § 623(d) (1988).
See Goldberg v. Bama Mfg. Corp., 302 F.2d 152
(5th Cir. 1962) (when a district court denied both
reinstatement and back pay to an employee who was discharged
for reporting wage and hour violations to the Department of
Labor Wage and Hour Division because the complainant was an
incompetent, dishonest employee, the Fifth Circuit reversed
the denial of back pay relief); Kneisley v. Hercules,
Inc., 577 F. Supp. 726 (D. Del. 1983) (where the
plaintiff had falsified travel and expense reports for
company trips, considerations of employer-employee
compatibility are irrelevant to a back pay award).
The Secretary concluded that in the instant proceeding, denial of
all back pay also would have the effect of undermining the acts'
antidiscrimination objectives, particularly because Complainant's
misconduct took place long after he was employed by Respondent.
Having violated the acts, Respondent would in effect gain a
windfall as a result of Complainant's post employment deception,
which could undermine the confidence of other potential
whistleblowers that they will be protected because the Department
of Labor "allowed the employer to get away with it scot
free." Goldberg v. Bama Mfg. Corp., 302 F.2d at 156.
While the Secretary shared the ALJ's concern that the integrity
of the adjudicatory process is threatened when witnesses lie
under oath, balancing the considerations discussed above, he
found that denial of back pay would not be appropriate in this
case.
The Secretary noted that the matter of dishonesty could be
referred to the appropriate United States Attorney's Office or
bar disciplinary committee.
XIX Mere pleading of violation of 5851(g) does
not end ALJ jurisdiction
In Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May
21, 1990), the ALJ noted that where facts of sabotage on the part
of the complainant are established, section 5851(g)
precludes any form of relief to a complainant under section
5851(a). The ALJ rejected the Respondent's contention that the
ALJ does not have jurisdiction to hear the complaint where there
has been a 5851(g) violation -- that interpretation would permit
a respondent to escape review simply by alleging that the
employee committed acts of sabotage.
XIX Employee deliberately causes of violation of
the Atomic Energy Act
In McKinney v. Tennessee Valley Authority, 92-ERA-
22 (ALJ Mar. 17, 1992), the ALJ granted summary judgment based on
the Complainant's violation of 42 U.S.C. § 5851(g), which
precludes whistleblower protection for any employee who, acting
without direction from his or her employer deliberately causes a
violation of any requirement of the Atomic Energy Act. In
McKinney, the Complainant failed to respond to the
Respondent's motion for summary judgment, and the ALJ took the
Respondent's factual proof as true. The Respondent presented
proof (principally based on a MSPB decision) that the Complainant
violated the Atomic Energy Act when he affirmatively disabled two
airtight doors to an airlock which was the passageway between a
drywell housing a nuclear reactor and the outside. This action
violated the requirement that primary containment integrity be
maintained at all times when the reactor is critical or when the
reactor water temperature is above 212 degrees fahrenheit and
fuel is in the reactor vessel. The Respondent also established
that it was subjected to a $75,000 civil penalty for such
violations, showing therefore, that Complainant caused a
violation of the Atomic Energy Act.
XIX Damages; Preemption of state cause of
action
Section 210(g) of the Energy Reorganization Act of 1974, as
amended, 42 U.S.C. § 5851(g), denies relief for retaliation
where the whistleblower deliberately commits a safety violation
only in regard to the remedy provided by section 210(a); it does
not bar state-law tort actions. English v. General
Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270,
2280 (1990).
