Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
CASE NO.: 2001-CAA-00018 Issue date: 07Feb2002
In the Matter Of:
David W. Pickett Complainant,
v.
Tennessee Valley Authority,
Respondents
Recommended Decision and Order Decision Contents
Procedural History p. 2
Prior Acts and Pattern of Conduct p. 6
Rendition of Facts March 30, 2001 Interview p. 10 Pickett's Testimonyp. 12 The OIG Investigation and Response to the OSHA Complaintp. 13 Blacklistingp. 15 Burden of Proofp. 18 Pickett's Statusp. 19 Vicarious Liabilityp. 20 Qualified Privilegeor Immunityp. 21 Dual Motivep. 27 Evaluation of Relevant Evidence Application of the Qualified Privilege p. 28 Statement of Robert Tyndall p. 32 The OSHA Investigation p. 34 TVA's Response to the Charges p. 38 Findings of Blacklistingp. 41 Remediesp. 43 Reinstatement and Back Pay p. 44 Front Pay p. 46 Compensatory Damages p. 47 Exemplary Damages p. 53 Other Requested Relief p. 59 Attorney Fees and Costsp. 60 Recommended Order p. 61 Notesp. 62
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Procedural History
On July 20, 1999, David W. Pickett ( hereinafter "Pickett"), a former employee of the Tennessee Valley Authority, ("TVA"), filed a complaint alleging that TVA and two individuals engaged in discriminatory acts of retaliation against him in violation of various environmental whistleblower statutes, including the Clean Air Act, 42 U.S.C. 7622, (CAA); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9610, (CERCLA); the Solid Waste Disposal Act, 42 U.S.C. 6971, (SWD); the Safe Drinking Water Act, 42 U.S.C. 300j-9,(SDW); the Federal Water Pollution Control Act, 33 U.S.C. 1367,(FWPC); and the Toxic Substances Control Act, 15 U.S.C. 2622,(TSC), when they petitioned the Department of Labor, Office of Workers' Compensation Programs (OWCP) to terminate the disability benefits Pickett was receiving under the Federal Employees Compensation Act (FECA), and then allegedly refused to rehire him. The FECA benefits program is administered by the OWCP. On August 9, 2000, that claim was dismissed by Order of another administrative law judge, on the basis that the Complainant had failed to file in a timely manner.1 On November 16, 2000 the Administrative Review Board ("ARB") denied Complainant's requests for reconsideration. I understand that this action has been appealed. See ALJ-15, 10 ; Transcript of the September 17th conference, 28.
Without making an appointment. Respondent Yates went to Mr. Green?s [a former employer of Mr. Pickett] place of business today, first demanding that an employee provide business records. Then meeting with Mr. Green, Respondent Yates wasted some thirty minutes of his time, with customers waiting, making illegal
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blacklisting remarks to the employer, violating Mr. Pickett?s whistleblower and privacy rights by:
a. stating that Mr. Pickett was a malingerer:
b. stating that "our doctors" had determined that Mr. Pickett was not hurt and could go back to work;
c. making fun of Mr. Pickett for living at home with his parents at age 36;
d. violated Mr. Pickett?s right to confidentiality by revealing he was receiving "full disability" and TVA had recently cut him a check for $50,000";
e. repeatedly demanding to see Mr.Green?s payroll1 check and computer records;
f. stating that DCL OWCP had sent him there to investigate, claiming he was not there for TVA;
g. asking how much money Mr. Pickett made;
h. telling him specific details of Mr. Pickett?s case:
i. repeatedly threatened him with a subpoena for business records;
j. asked how he would feel if someone said their back was hurt and paid them for full disability and they went and worked for someone else;
k. telling him about Mr. Pickett?s softball and other activities;
l. stating that his back hurt but he had to work everyday:
m. stating that his 20 year old son wanted to move out but he told him he had to pay his own way when he moved out and didn?t understand why someone 38 years old still lived at home. obsessing on the issue;
n. discussing matters in front of Mr. Green?s secretary, who entered the conference room, not waiting for her to leave: and
o. stating that Mr. Pickett?s case would not look good in front of a jury, which would find Mr. Pickett to be a malingerer.
Mr. Green informed Respondent Yates that Mr. Pickett did nothing wrong and would have starved without help from Mr. Pickett's parents and friends. Thereupon, Respondent Yates repeatedly threatened to obtain a court subpoena for business records regarding the $1500 in income.
Respondent Yates told Mr. Green he was looking for Mr. Pickett. In response. Mr. Pickett-called Mr. Yates, who proceed to intimidate and harass him via telephone. Respondent Yates was instructed to contact Mr. Pickett?s counsel.
I find that an OSHSA investigation is a conditional right, and that OSHA has a right to determine whether a prima facie case exists as a condition precedent to an OSHA investigation. I would have found otherwise, and I may have accepted Pickett's argument that there had to be a response to the complaint, but I accept that OSHA does not have to require prohibitions to ex parte communications. Moreover, Pickett has not shown a valid reason to remand the case to OSHA. Further, this action was heard de novo, and the Department of Labor has the authority to remedy any matter within my jurisdiction.
These findings show that Pickett has proven a prima facie case of blacklisting against TVA. 29 CFR §24.2(b). I accept Yates made derogatory remarks about Pickett that were intended to go to Pickett's prospective employment. When words spoken have such a relation to the profession or occupation that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff; but when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application be made. Bowdre Bros., supra.
The Board has determined that I may also consider the level of compensatory damages awarded in employment discrimination cases brought outside the Labor
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Department's administrative law system. Doyle, supra and Leveille, supra. After a review of several cases that I determine are analogous to blacklisting and the current findings, I note the following:
Noble v. University of Georgia, WL 1339745 (Ga. Jury, 2001). Plaintiff received a $20,000 verdict. A white female suffered financial loss and emotional distress when she was denied admission to the defendant university. The plaintiff contended that the defendant discriminated against her by adhering to a policy which gave preferential treatment to admitting blacks and other minorities and that it violated her civil rights. She further contended that she was forced to attend another university with a higher admission rate because of the defendant's discrimination procedures. The defendant denied liability. Another white male also suffered emotional distress in a similar incident with the defendant and received an award.
Dale Edwards v. Icon Equipment Distributors, Inc. and Brian Crandall, WL 1517978 (Ohio Jury, 2001). The Plaintiff received a verdict of $4,400. Plaintiff worked as a truck driver and laborer at Defendant Icon's Cleveland office from May 1997 until he was discharged in July of 1999. Prior to his discharge, plaintiff had been absent from work for one week. Defendant Crandall was the president and owner of Defendant Icon. Plaintiff alleged that: (1) he had requested and taken a one week leave of absence to reduce stress and high blood pressure which was evidenced by a note from his physician; (2) he was wrongfully discharged by defendants based upon the perception that he was disabled because of high blood pressure and stress; (3) his discharge was discriminatory and in violation of Ohio public policy; and (4) he suffered damages as a direct result of defendants' actions. Defendants contended that: (1) they were unaware of any claimed disability by plaintiff; (2) plaintiff had never asked for any accommodation for his claimed disabilities; and (3) plaintiff was discharged for legitimate, nondiscriminatory business reasons such as plaintiff's failure to comply with personnel policies and absenteeism.
Mary Dixon-Richardson v. West, Acting Secratary, Department of Veterans Affairs and Cincinnati-Ft. Thomas Veterans Adminstration Medical Center WL 1689694 (.USDC, O, Ohio Jury, 2001). Verdict: $15,538. Breakdown: $15,000 compensatory damages and $538 back pay. Plaintiff was a long-time employee of Defendant Veteran's Administration Medical Center. She was employed as a medical records clerk. Plaintiff filed an EEOC charge against a co-worker on the grounds of sexual harassment. That claim was then settled. Plaintiff alleged that following the settlement, she was subjected to progressive discipline for a period of approximately two years which culminated in a five day suspension without pay. Plaintiff alleged that: (1) she received progressive discipline without grounds following her filing of the EEOC charge; (2) she was retaliated against by defendant; and (3) she suffered damages including back pay in the amount of $538 as a direct result of defendant's actions. Defendant contended that any disciplinary action taken against plaintiff was justified based on plaintiff's conduct including rudeness to patients.
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Kohn vs. County of Los Angeles, WL 1720226 (Orange County Superior Court, T.D.Cal., 2001). The verdict was for $175,000. A 70-year-old male applicant sued the defendant state school district claiming age discrimination in violation of state law. The plaintiff alleged that the defendant's failure to rehire him because of his age caused him emotional distress. The defendant denied the allegations and claimed that the plaintiff was not selected due to his lower evaluation scores than other applicants. The court rejected the age discrimination claim and awarded damages for emotional distress but also found that the defendant failed to stop the occurrence of discrimination.
Harsh v. Kwait, WL 910025 (Ohio Jury, 2001). Compensatory damages were $10,000. A female office manager sued the male defendant dentist claiming sex discrimination in violation of state law. The plaintiff alleged that she was subjected to inappropriate sexual jokes and physical touching by the defendant resulting in emotional distress to the plaintiff. The defendant denied the allegations.60
Pickett did not show that the incident has caused permanent psychiatric or psychological damage, aggravated or exacerbated the pre-existing condition, or has caused Pickett to spend out of pocket medical expenses. He did not show that he needed immediate medical treatment, or that he needs any medical treatment. He did not provide any insight into Pickett's ability to react to management and co-workers, maintain attention and concentration or perform his daily activities or work related activities. He did not reference me to the Diagnostic & Statistical Manual of Mental Disorders IV (APA 4th ed.1997) (hereinafter "DSM IV "), the standard work on mental disorders.61
Based on my findings and other rulings, almost all of the requests for relief stated above are based on an underlying premise derived from a theory of a continuing violation. I have rejected that argument. Moreover, I reject any of the requested relief that is not based on my findings of fact. All of the relief that is appropriate relates to the incident that occurred on March 30, 2001 and that involved an episode of blacklisting activity.
OIG witness testimony shows that TVA does not have any training program in whistleblower matters and does not have specific policies on how to investigate them.
I agree that an order advising TVA not to commit infractions of the whistleblower acts is appropriate. I do recommend that TVA enter a formal apology to Pickett, with a pledge not to perform blacklisting activities in the future.
Attorney Fees and Costs
The environmental acts entitle a winning complainant to an award of "the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint." 42 U.S.C. §7622(b)(2)(B) (CAA). No petition is before me at this time.
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Recommended Order
Accordingly, in view of the foregoing, and upon the entire record, I issue the following Recommended Order:
1. Tennessee Valley Authority ("TVA", Respondent herein) shall immediately pay Complainant Pickett $5,000.00 as compensatory damages for the emotional suffering and distress caused to him by the Respondent's actions herein.
2. TVA shall also pay to Complainant Pickett $10,000 in exemplary damages.
3. (a) Counsel for Complainant shall file a Petition for Fees and Costs within thirty (30) days after the filing of the Recommended Decision and Order for all legal services rendered with service on Counsel for Respondents. Such submission shall be on a line item basis and shall separately itemize the time billed for each service rendered and costs incurred. Each such item shall be separately numbered.
(b) Respondent may file objections, if any, to said application for fees and costs within fifteen (15) days of receipt, but all objections to said Counsel's petition shall be on a line item basis using Complainant's numbering system, and any item not objected to in such manner and within such time required shall be deemed acquiesced in by Respondent.
(c) Within fifteen (15) days after receipt of any such objections from Respondent, Counsel for Complainant may file a response thereto. Such submission shall be in the form of a line item response. Any objections not responded to in such manner and within such time will be deemed acquiesced in by Counsel for Complainant.
4. Accordingly, in view of the foregoing Findings of Fact and Conclusions of Law and keeping in mind the egregious, disparate and discriminatory treatment of the Pickett by the TVA, I find and conclude that the Pickett is also entitled to the following relief and that such relief is reasonable and necessary to remedy the wrongs done to Complainant by Respondents through its agents, representatives and employees: The Respondent shall also provide a copy of this ORDER without comment, via first class mail, to each of the employees of OIG within fourteen (14) days of issuance of this ORDER.
5. TVA will provide an explanatory letter to be approved by Pickett setting forth all of the circumstances truthfully and accurately as to the events of March 30, 2001 and their aftermath and such letter shall be placed in Pickett's official personnel file.
Daniel F. Solomon
Administrative Law Judge
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NOTICE: This Recommended Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. § 24.8 (2001).
Notes
1 See Pickett v. Tennessee Valley Authority, 1999-CAA-25 and 2000-CAA-9 (consolidated cases), http://www.oalj.dol.gov/PUBLIC/WBLOWER/DECSN/2000CAA09A.HTM.
4 The procedure is set forth by 42 U.S.C.A. § 7622(b)(2)(A). Section 11(c) of the Occupational Safety and Health Act of 1970 authorizes OSHA to investigate employee complaints of employer discrimination against employees who are involved in safety and health activities protected under the Act. OSHA also is responsible for enforcing whistleblower protection under ten other laws.
5 See Administrative Law Judge exhibits "ALJ" 2, 3, 3A and 3B.
1. Emergency Motion to Order Disclosure of All Ex Parte Contacts with OSHA by Respondents.
2. Motion to Reconsider Order Denying Remand.
ALJ-6.
B. TVA's Motion for Continuance (ALJ-8). Pickett's Opposition Motion (ALJ- 8A).
C. Pickett's September 4:
1. Motion to Quash TVAs Notice of Deposition.
2. Emergency Motion to Order Disclosure of All Ex Parte Filings and Contacts With OSHA by Respondents.
ALJ-9.
C. Pickett's Motion to Quash Any TVA Non-Party Depositions. ALJ-10.
D. TVA Motion for Summary Decision. ALJ-11.
E. Pickett's September 6:
1. Motion to Strike Improper Motion for Summary Judgment.
2.Objection to TVA?s Misleading Arguments.
3.Motion to Draw Adverse Inferences Re: OSHA Obstruction.
4.Citation of Supplemental Authorities Re: Depositions.
5.Motion to Admonish Respondents Re: Witnesses.
ALJ- 13.
F. Pickett's September 7:
1. Request to serve OWCP with notice of hearing.
2. Request to serve supoenae duces tecum to each defendant.
3. Request to serve additional exhibits.
ALJ- 14.
G. Pickett's Acknowledgment of the Court's Second Speaking Order Re: Mr. Green's Rights. (ALJ-15A).
H. Pickett's September 10:
1. First Notice of Filing.
2. Motion for Protective Order Against TVA Misconduct.
ALJ-15B.
I. TVA's Response to Pickett's September 6 Submission, dated September 11 (ALJ-16).
J. TVA's Prehearing Submission dated September 11(ALJ-17).
K. TVA's Response to Pickett's September 10 Motion for a Protective Order, dated September 12 (ALJ-18).
L. TVA s Opposition to Pickett's Motion for Permission to Supplement His Hearing Exhibits After September 10, dated September 12 (ALJ-19).
M. TVAs Supplement Prehearing Statement, dated September 12 (ALJ-20).
N. Pickett's Prehearing Statement (ALJ-21).
O. TVA's Motion in Limine. ALJ-22.
P. Pickett's Motion for Adverse Findings Against TVA for Refusal to Provide Documents Sought By Subpoenas And Motion to Compel TVA to Comply With Subpoenas, dated September 13.
Q. Pickett's Motion to Compel TVA to Obey Court's September 7 Order Regarding Electronic Filings, dated September 14 (ALJ-25).
R. Pickett's Errata, dated September 14 (ALJ 26). Filing of letter advising that there was no O2 Form filed by Yates.
S. TVA's September 14 filings:
1. Second Motion in Limine, and TVAs Response to Pickett's September 13 Motion Request is to exclude Tyndall's testimony.
2. Third Motion In Limine.
3. Motion to Quash Pickett's Subpoenas.
T. Pickett's Notice of Filing, containing the documents in R, above, dated September 14 (ALJ-28).
U. Pickett's September 16:
1. Motion for Adverse Inferences and Default Judgment.
2. Pickett's Response to TVAs September 14 Motion (which probably means the Second Motion in Limine).
ALJ-29-ALJ-31.
V. Pickett's September 16 Motion for Adverse Inferences and Default Judgment (ALJ-31).
8 RX-3, RX-5, RX-6, RX-7, RX-8, and RX10 were admitted into evidence. RX-1, RX-2, RX-4 and RX-9 were identified but were not formally admitted into the record at hearing. Note that all of these exhibits are part of ALJ-17, TVAs Prehearing Submission, which was admitted into evidence, without objection and which incorporates the documents as if set forth fully at length. RX-1 is the complaint in this case, which is also marked as ALJ-1. RX-2 is the complaint in the prior case, which hereby is made a part of this record. RX-4 is a copy of a FAX dated March 5, which is also at CX-2, 160, and which had been admitted into evidence.
9 "TVA pays top executives $5.5 million in bonuses," Jennifer Lawson, Knoxville News-Sentinel, December 29, 2001.
10 On January 8, Pickett filed a response alleging, "TVA does not deny the fact of TVA's record power sales and the fact of TVA's management bonuses exceeding the federal pay cap." TVA was not asked to respond to this issue in the case in chief, and therefore the news article is also not impeachment evidence.
11 Although OWCP is not a party to the case, Pickett moved to draw adverse inferences against the Office of Workers Compensation Programs (OWCP),
as OWCP failed to attend the trial, failing to produce Mr. Halbur (who was listed by both Mr. Pickett and TVA as a witness and was part of TVA's pretext). Both OWCP and OSHA are advised by the same DOL Solicitor's Office. First OSHA covered up for TVA and OWCP. Then OWCP refused to cooperate with the Office of Administrative Law Judges. OWCP's empty eleventh-hour filing does not let OWCP off the hook. Nor is it good legal practice for a DOL Solicitor's Office manager to ignore Orders from an Administrative Law Judge or refuse to attend trial. Like the Respondents TVA and TVA OIG, Respondent OWCP waived its right to put on witnesses or evidence in its defense. The Court should so hold in the RD&O.
Pickett's Brief. OWCP is not a party, although Department of Labor is always a party. I discussed the reasons why I determine that there is a qualified privilege for investigations by OWCP, infra.
12 In that case, Pickett named as respondents the TVA Inspector General and the former manager of the TVA power plant where he had been employed. The ALJ dismissed them from that proceeding, since they were not his "employers." Pickett v. TVA, at 5-6. Stevenson shows that the Secretary of Labor has held that individuals are not covered "persons" under the environmental whistleblower provisions unless they are also employers within the meaning of the applicable statute. See, Stephenson v. NASA , supra. [Pickett] argues, however, that the Administrative Review Board (ARB) should revisit this holding in light of the grave facts of this case.
In Stephenson, complainant contended that the TSCA and CAA employee protection provisions contemplated complaints against "person[s]." The secretary noted, however, that while the provisions reference "person[s]" in the procedural subsections (b) - (e), the substantive prohibition contained in subsection (a) refers to "employer[s]." Although the TSCA defined the term "person" as "an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof" for purposes of the CAA. 42 U.S.C. §§ 7602(e), the secretary determined;
The plain language of these employee protection provisions suggests that they were intended to apply to persons who are employers. That classification does not include the employees named here as respondents. Any other construction would require a clearer statement of intent than appears in the statutes at issue. For example, in a related area, courts have held corporate officers jointly and severally liable for unpaid wages under the Fair Labor Standards Act (FLSA) where the "economic reality" indicates sufficient control over the employment relationship. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) and cases cited therein. This result follows from the FLSA definition of the term "employer" which "includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S.C. §§ 203(d) (1988). Similarly, under the Mine Act, corporate "director[s], officer[s], and agent[s]" may be held liable for civil penalties under certain circumstances pursuant to explicit statutory directive. 30 U.S.C. §§ 820(c) (1988).
13[11.] Those benefits have been terminated again. See, e.g., Pickett's Brief at 4.
14 Note that Pickett called Yates as his first witness as an adverse witness as if on cross examination. Therefore, the prior record could be used to impeach Yates.
15 29 CFR § 18.48 Records in other proceedings. In case any portion of the record in any other proceeding or civil or criminal action is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless the administrative law judge directs otherwise.
16 I determined that much of the evidence seen in a in camera proceeding on privileged documents would be a waste of judicial economy. 29 CFR § 18.403 Exclusion of relevant evidence on grounds of confusion or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues, or misleading the judge as trier of fact, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
17 "He [Green] volunteered information, said he [Pickett] drove a truck occasionally. I asked what kind of truck to make sure it wasn't a great, you know, great big, large truck that was hauling, you know, heavy material. He said it was just a regular truck to pick up machine parts around the Oakridge/Knoxville area, answer the telephone. I think he actually said it was not like regular work, is the way he explained it to me."
18 Yates said, "Mr. Pickett has not been harmed in any way. He received a check from us for over fifty thousand dollars. He has not been harmed." And I said, "well that's, you know, none of my business." I said, you know, "I don't want to get into that." TR, 32.
19 He also said, "You know, he had a son. And when he told him -- when he moved out, he paid his own way. And he couldn't understand why somebody that old lived at home. I said well, he didn't really have any money." (TR, 40).
21 Whistleblower provisions do not protect workers from unreasonable or arbitrary actions on the part of an employer -- rather, they only protect workers from actions taken in retaliation for engaging in activities protected by the ERA. Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995). Whistleblowing is not directly concerned with safety standards, only the deviation from or the flouting of them. Norris v. Lumbermen's Mut. Casualty Co., 881 F2d 1144 (1st Cir. 1989). The federal "whistleblower" statutes promote enforcement of environmental laws by protecting employees who aid a government enforcement agency. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988).
22 42 U.S.C.A. § 7622 United States Code Annotated Title 42. The Public Health and Welfare Chapter 85--air Pollution Prevention and Control Subchapter Iii--general Provisions § 7622. Employee protection.
23 By analogy to Title VII cases, an employer is prohibited from retaliating against an employee who has "opposed" any practice by the employer made unlawful under Title VII; and prohibits an employer from retaliating against an employee who has "participated" in any manner in an investigationo under Title VII. To establish a claim under either the "Opposition" or "Participation" Clause, Plaintiff must meet show that: (1) he engaged in activity protected by Title VII; (2) this exercise of protected rights was known to Defendants: (3) Defendants thereafter took an adverse employment action against Plaintiff, or Plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Johnson, 215 F.3d at 578; see Morris, 201 F.3d at 792 (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). If Plaintiff establishes a prima facie case under either clause, then the burden shifts to Defendants to articulate a legitimate, nondiscriminatory reason for Plaintiff's discharge. Id. (citing McDonnell Douglass, 411 U.S. at 802, 93 S.Ct. 1817). Plaintiff must then demonstrate that the proffered reason was not the true reason for the employment action, i.e., that the reason was a mere pretext for discrimination. Id. at 578-79.
2422. TVA advises that the matter has been re-litigated.
25 Although Mr. Fine admitted at hearing that he initialed the letter to OSHA on Mr. Marquand's behalf.
27 Privileges: 29CFR § 18.501 General rule. Except as otherwise required by the Constitution of the United States, or provided by Act of Congress, or by rules or regulations prescribed by the administrative agency pursuant to statutory authority, or pursuant to executive order, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
28 Const Art. IV § 2, cl. 1: Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
29 In some jurisdictions, such as in California, a qualified privilege to perform investigations in a workers' compensation venue is established by statute. Under California law, a statement is privileged if it involves a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information. Maynard v. City of San Jose, 37 F.3d 1396, 66 Fair Empl.Prac.Cas. (BNA) 123 9th Cir.(Cal.) Oct 13, 1994.
No similar statutory privilege exists with respect to TVA.
30 In the case of whether the court reporter was entitled to a qualified privilege, were a common-law judge to perform a reporter's function, she might well be acting in an administrative capacity, for which there is no absolute immunity. Id.
31 "We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Further- more, ... the prosecutor's act in seeking an indictment is but the first step in the process of seeking a conviction.... Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process. Id." In Antoine, a court reporter was found not absolutely immune from damages liability for failing to produce a transcript of a federal criminal trial. Respondents bear the burden of establishing the justification for the absolute immunity they claim, which depends on the immunity historically accorded officials like them at common law and the interests behind it,
32 A conditional privilege can be lost if it is abused because of the publisher's lack of belief or reasonable grounds for belief in the truth of the defamatory matter. Schafroth v. Baker, 276 Or. 39, 45, 553 P.2d 1046 (1976); Carroll v. Bayerische Landesbank, 150 F.Supp.2d 531(S.D.N.Y., 2001) ; Taggart v. Drake Univ., 549 N.W.2d 796, 803 (Iowa 1996); Haywood v. Lucent Technologies, Inc., 2001 WL 1355282 (N.D.Ill.E.Div.,2001);Rice v. Rose & Atkinson, 2001 WL 1589626 (S.D.W.Va.,2001). In Snee v. Carter-Wallace, Inc., 2001 WL 849734, ( EDPa., Jul 02, 2001), Snee claimed that Carter-Wallace defamed him when it repeated false and misleading statements made by two co-workers to other Carter-Wallace employees and prospective employers, the court found: "a qualified privilege extends to an employer who responds in good faith to the specific inquiries of a third party regarding the qualifications of an employee". After reviewing the facts, applying the concept in a defamation setting, the court determied that Snee failed to demonstrate that the defendant abused the qualified privilege with respect to any of the categories of defamatory statements by acting in reckless disregard of the statements' truth or falsity. Under New Jersey law, a plaintiff must allege sufficient facts indicative of "excessive publication" to defeat the operation of this privilege. Schwartz v. Leasametric, Inc., 224 N.J.Super. 21, 539 A.2d 744,N.J.Super.A.D. Mar 23, 1988; Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 191 N.J.Super. 202, 207, 465 A.2d 953 (Law Div.1983), aff'd o.b. 198 N.J.Super. 19, 486 A.2d 344 (App.Div.1985), aff'd 104 N.J. 125, 516 A.2d 220 (1986).
33 When he testified that Yates' involvement was initiated by a workers' compensation inquiry.
34 TVA did not raise whether Yates' mission was based on privileged "advice from counsel". In any event, I do not accept that there is such a defense, especially when the investigation goes beyond the ostensible purpose of the mission.
35Fresh v. Cutter, 73 Md. 87, 20 A. 774 (1890); Doane v. Grew, 220 Mass. 171, 107 N.E. 620 (1915); Carroll v. Owen, 178 Mich. 551, 146 N.W. 168 (1914); Snee v. Carter-Wallace, Inc., supra; Erickson v. Marsh & McLennan Co., supra.
36See Case No. 1999-CAA-25, September 10, 1999; CX-1, CX-2.
37 Yates used objections as an occasion to assert that his memory was faulty. For example, see TR, 62-65. As the TVA representative, Yates was privy to the entire argument relating to this issue prior to giving testimony. He had an opportunity to refresh his memory as he listened to the proceedings, if not in 1992, in 1999. At that time, he attended a meeting regarding Pickett's 1999 complaint and furnished information about Pickett to lawyers handling that claim.
38 "Tyndall's testimony does not meet the Daubert/Kumho standards. By his own admission, Tyndall's "methodology" consisted solely of assuming the truth of the matters asserted in Pickett's complaint (Tyndall Decl. ¶ 2). Based on his declaration, it is clear he made no independent investigation of the facts and relied solely on what he was told either by Pickett or Pickett's counsel. There is no indication that he questioned Mr. Green, the only other individual who was a participant in the meeting at Oak Ridge Fabricators on March 30, 2001. Instead, his "expert" analysis appears to have consisted of nothing more than reading the complaint.
"In addition, Tyndall claims that he has not seen any records concerning Agent Yates' "interviews" (Tyndall Decl. ¶ 3). It is undisputed, however, that TVA sent a copy of Agent Yates' April 9, 2001, memorandum (RX-5) describing his conversation with Mr. Green and his later telephone conversation with Pickett to Pickett's counsel via facsimile on September 11 (TVA respondents' prehearing submission at 7). Tyndall's declaration was not executed until September 12 (Tyndall Decl. at 3). Either Tyndall was not provided with this report or he simply refused to consider it.
Tyndall produced nothing to warrant the admission of his testimony as an expert. He did not consider the evidence available to him, made no investigation of the facts, and based his "opinion" on nothing more than Pickett's self-serving hearsay statements. Accordingly, his opinion is inherently unreliable and thus inadmissible under the Daubert/Kumho Tire standard.
39 Tyndall's declaration also evidences an extreme bias against employers. In the first instance, he is a former client of Pickett?s counsel (see Tyndall v. EPA, 93-CAA-6, 95-CAA-5, 96-CAA-2 (ALT Sept. 17, 1996) and therefore should be seen as beholden to counsel and willing to say anything he believed would be of use to counsel. He further proclaims that he "was the prevailing plaintiff in a DOL environmental whistleblower case and know (sic) first-hand the extent to which federal employers will go to violate whistleblower rights" (Tyndall Decl. ¶ 10). This bias is also evident concerning TVA specifically. ALJ-27.
40 See Michael Graham, "Application of the Rules of Evidence in Administrative Agency Formal Adversarial Adjudications: A New Approach", 1991 U.Ill.L.Rev. 353 and Richard Pierce, Use of the Federal Rules of Evidence in Federal Agency Adjudications, 39 Admin.L.Rev. 1 (1987).
"Today, it is well accepted in federal courts that "relevant evidence not admissible in court, including hearsay, is admissible at an administrative hearing." Tyra v. Secretary of HHS, 896 F.2d 1024, 1030 (6th Cir.1990) cited in Charles H. Koch, Jr., Administrative Law And Practice Updated, 2001-2002 Pocket Part . "That is to say that an agency may act arbitrarily if it fails to admit or to consider the reliable hearsay. This is especially true where the administrative appeal authority rejects the evidence even though the presiding officer gave it some credence." Id.
41Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); Beck v. Mathews, 601 F.2d 376 (9th Cir. 1979); Holland Furnace Co. v. FTC, 295 F.2d 302 (7th Cir. 1961); NLRB v. International Brotherhood of Electrical Workers, 432 F.2d 965 (8th Cir. 1970). By analogy, the Department of Labor Benefits Review Board Board, similar too the ARB will not interfere with credibility determinations made by an ALJ unless they are "inherently incredible and patently unreasonable." Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); Phillips v. California Stevedore & Ballast Co., 9 BRBS 13 (1978).
42Tennessee Valley Authority Act, 16 U.S.C. § 831t: Offenses; fines and punishment
(a) Larceny, embezzlement and conversion All general penal statutes relating to the larceny, embezzlement, conversion, or to the improper handling, retention, use, or disposal of public moneys or property of the United States, shall apply to the moneys and property of the Corporation and to moneys and properties of the United States intrusted to the Corporation.
(b) False entry, report or statement Any person who, with intent to defraud the Corporation, or to deceive any director, officer, or employee of the Corporation or any officer or employee of the United States (1) makes any false entry in any book of the Corporation, or (2) makes any false report or statement for the Corporation, shall, upon conviction thereof, be fined not more than $10,000 or imprisoned not more than five years, or both.
(c). Conspiracy to defraud Any person who shall receive any compensation, rebate, or reward, or shall enter into any conspiracy, collusion, or agreement, express or implied, with intent to defraud the Corporation or wrongfully and unlawfully to defeat its purposes, shall, on conviction thereof, be fined not more than $5,000 or imprisoned not more than five years, or both.
(a) The administrative law judge shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. Communications by the Office of Administrative Law Judges, the assigned judge, or any party for the sole purpose of scheduling hearings or requesting extensions of time are not considered ex-parte communications, except that all other parties shall be notified of such request by the requesting party and be given an opportunity to respond thereto.
(b) Sanctions. A party or participant who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to any appropriate sanction or sanctions, including, but not limited to, exclusion from the proceedings and adverse ruling on the issue which is the subject of the prohibited communication.
SOURCE: 48 FR 32538, July 15, 1983.
44See generally, 1 Charles H. Koch, Administrative Law and Practice ' 2.23-.24 (2d ed. 1997); Kenneth C. Davis and Richard J. Pierce, Jr., Administrative Law Treatise ' 9.5 (3d ed. 1994); Jerry L. Mashaw, Due Process in the Administrative State 107- 53 (1985); Edward L. Rubin, Due Process and the Administrative State, 72 Calif. L. Rev. 1044, 1130-78 (1984).
45 In some states, there is a prohibition against any ex parte communication when the opponent has counsel unless it is made:
(1) in the course of the official proceeding in the cause;
(2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer;
(3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or
(4) as otherwise authorized by law.
Rules Regulating The Florida Bar: Chapter 4. Rules of Professional Conduct, Rule 4-3.5, Impartiality and Decorum of the Tribunal (in part pertinent). Under this rule, OSHA would qualify as an "official".
46 Although the ex parte rule can not be applied at the OSHA level, it may be that the decisional independence of all adjudicators is constitutionally protected. Perry v. McGinnis, 209 F.3d 597, 603-08 (6th cir. 2000) (termination of state ALJ because of agency's disagreement with his decisions states claim of First Amendment violation); Harrison v. Coffman, 35 F.Supp.2d 722 (E.D.Ark. 1999).
48 I permitted the filing, and listened to argument but denied the cross motions on the merits, as material facts were at issue.
49 Although Mr. Fine admitrted that he initialed and sent the brief.
50 I note that the date of this section is contained in the Handbook dated April 5, 2001 and the disputed activity occurred March 30, but the internal OIG investigation was not complete until April 17.
51 " He asked me how I'd feel if one of my workers was, you know, saying his back was hurting, wasn't working and he went to work for somebody else".
52See Case No. 1999-CAA-25, September 10, 1999; CX-1, CX-2.
53 Such a communication must be motivated at least in part by protected activity. Id.
54 See New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964)).
55 Moreover, if he did not have actual notice he should have known it.
56 Pickett did not address the issue fully by brief or by his Proposed Findings. In Berry v. Bd. of Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), the Court identified the following three factors as bearing on this determination:
(1) Subject matter. Do the acts "involve the same type of discrimination, tending to connect them in a continuing violation?" Berry at 981. See Graham v. Adams, 640 F. Supp. 535, 538-539 (D.D.C. 1986) (continuing violation allegations must connect remote claims to incidents addressed by claims timely filed).
(2) Frequency. Are the acts "recurring . . . or more in the nature of an isolated work assignment or employment decision?" Berry at 981. Under this factor, a complainant can establish a continuing violation either through a series of discriminatory acts against an individual or a respondent's policy of discrimination against a group of individuals. Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1480-1481 (9th Cir. 1989). The distinction is between "'sporadic outbreaks of discrimination and a dogged pattern.'" Bruno v. Western Elec. Co., 829 F.2d at 961, quoting Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 725 n.73 (D.C. Cir. 1978) (In Bruno, the court focused on the defendant's intent "to take any action necessary to get rid of plaintiff" in affirming the district court's finding of a continuing violation).
(3) Degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? Berry at 981.
In considering this factor, the court in Waltman v. Int'l Paper Co., reasoned: Acts of harassment that create an offensive or hostile environment generally do not have the same degree of permanence as, for example, the loss of a promotion. If the person harassing a plaintiff leaves his job, the harassment ends; the harassment is dependent on a continuing intent to harass. In contrast, when a person who denies a plaintiff a promotion leaves, the plaintiff is still without a promotion even though there is no longer any intent to discriminate. In this latter example, there is an element of permanence to the discriminatory action, which should, in most cases, alert a plaintiff that her rights have been violated. 875 F.2d at 476.
All three are lacking based on my findings.
57 In essence, Pickett requests reinstatement to the position he might have had if he had not been injured in 1988. I note that in the prior claim, Pickett had requested re-employment with TVA and that this is contained in CX-2 as an attachment of the materials that TVA sent to OSHA. He wants all of the raises, sick, annual and official leave, promotions, benefits and retirement benefits that he would have accrued "based upon the probability that Mr. Pickett would have been a TVA powerplant production manager or supervisor".
58 See report of Kenneth B. Carpenter, M.D., a board certified psychiatrist (CX-2, 113-116, 133-135). In 1991, Sally T. Avery, Ph.D., diagnosed dysthymia and a somataform pain disorder.
59 I note also cases such as Blackburn v. Metric Constructors, Inc., 86- ERA-4 (Sec'y Oct. 30, 1991) (Decision on damages and attorney fees), slip op. at 14-17. A zero award was given ; complainant suffered little if any economic harm which would have tended to support his assertions of loss of self esteem and metal distress. I do not consider these because I find that Pickett and Green are credible.
60 The verdict also included punitive damages. This is addressed, infra.
61 See Turturro v. Continental Airlines, 128 F.Supp.2d 170 (S.D.N.Y., 2001).
62In re: Tennessee Valley Authority, EPA Docket No. 2000-04-008, EPA Appeals Board, September 15, 2000 Final Order on Reconsideration, on the web at: <http://www.epa.gov/boarddec/disk11/tva.pdf> (188 pages); Envirotech Corp. v. Tennessee Valley Authority, 715 F.2supp. 190 (W.D. Ky. 1998), noting: "TVA was compelled by a consent decree entered in Tennessee Thoracic Society v. Aubrey Wagner, C.A. No. 77-3286-NA-CV (M.D. Tenn. 1978) to reduce the output of fly-ash particulates and sulfur dioxide..." See also Duquesne Light Co. V. EPA, 698 F.2d 456, 469n13 (D.C. Cir. 1983)(TVA joined industry in unsuccessful appeal from EPA pollution regulations).
63See Case No. 1999-CAA-25, September 10, 1999; CX-1, CX-2.
64 Note that Title VII has certain limits on punitive damages based on the number of employees:
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
65 Number 13, using Pickett's numbers in his Proposed Findings.