Decisions of the Administrative Review Board
October 2006
Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006)
Title:
Final Decision & Order
Links:
Summary:
[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; IMPOSSIBLE-TO-PERFORM TASKS
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the ARB recognized that giving an employee impossible-to-perform work assignments can contribute to an abusive work environment. The Board quoted Vicki Schultz, Reconceptualizing Sexual Harassment , 107 Yale L.J. 1687, 1764 (1998), cited with approval in Durham Life Ins. Co. v. Evans , 166 F.3d 139, 149 (3d Cir. 1999):
[T]here are diverse ways of subverting a [victim's] perceived or actual competence. Sometimes it takes the form of deliberate sabotage of a [victim's] work performance, such as . . . simply assigning her tasks that are impossible to accomplish.
In Erickson , however, the Complainant failed to establish by a preponderance of the evidence that the assignments at issue were impossible tasks, and therefore failed to prove that her supervisors intentionally harassed her. The ARB found that the impossibility claim had depended in large part on the Complainant's "own over-broad definition of her role [as a project officer] in the ... process [for approving invoices]."
[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; "IDLING"; COMPLAINANT'S DECLINATION OF EMPLOYER'S OFFER TO ASSIGN MORE DUTIES
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the Complainant claimed that she had been subjected to a hostile work environment based in part on "idling," i.e., being left without work to do 50 to 75% of the time. The present case was a follow-up to an earlier whistleblower hearing in which the Complainant had testified that she did not have enough work to do. After that hearing, the Complainant's supervisor offered to give her more work to do and expand her position description accordingly, but the Complainant refused this offer. Then, after the ALJ issued a decision in the earlier case finding that EPA had underutilized the Complainant, the supervisor again offered to add to her duties and change her position description. Upon this offer, the Complainant declared that asking her to do any work other than contracting work (the ALJ having ordered her reinstated as a contract officer from her current position as a project manager) would still amount to unlawful "idling." The ARB held that "given the efforts EPA made to accommodate her, we find that EPA did not idle Erickson." The ARB also found that the Complainant failed to prove that she was idle 50 to 75% of the time -- that, in fact, the Complainant "either made herself unavailable for work or was busy."
[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; EVIDENCE THAT ONLY ESTABLISHES COMPLAINANT'S SUBJECTIVE REACTION TO MANAGER'S PEP TALK IS INSUFFICIENT
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), a new manager gave a "pep" talk to employees upon his arrival, and said something to the effect that the office need to start with a clean slate and rally as a team. The Complainant -- who at that point had pursued a number of whistleblower complaints against her Employer -- testified that she asked the new manager about how he was going to give people confidence that things have changed and that employees would not be retaliated against for raising issues with managers. The manager's answer and his responses to other employee's questions led the Complainant to conclude that the new manager was threatening retaliation for refusing to abandon prior discriminatory charges. The ALJ agreed with the Complainant and found that the new manager's remarks had created a hostile work environment. The ARB reversed, finding that the record did not evidence anything more than a speech new managers typically give, and did not show an intent to harass. The ARB wrote that even more importantly, the Complainant failed to establish that the new manager knew anything about her whistleblowing activities, or any other employee's whistleblowing activities when he gave the remarks. Nor did the Complainant establish that the remarks had detrimentally affected her. Rather, her skepticism about his statement and feeling that he could not be trusted were all she had shown.
[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; MONITORING OF COMPLAINANT'S WORK ATTENDANCE
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the Complainant argued that she had been subjected to "disparate surveillance" of her attendance. Both the ALJ and ARB rejected this argument: "[L]ike the ALJ, we conclude that looking for an employee during official duty hours, leaving notes on the door of her empty office, and asking her where she was during extended absences is not harassment."
[Nuclear and Environmental Whistleblower Digest XIV B 2 AND XIV B 4 e]
NAMING OF RESPONDENTS WITHIN FEDERAL AGENCY; OFFICE OF THE INSPECTOR GENERAL AND INDIVIDUAL SUPERVISORS ARE NOT PROPER SEPARATE PARTIES RESPONDENT
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the Complainant named EPA's Office of Inspector General (IG) and certain supervisors as Respondents. The ARB affirmed the ALJ's dismissal of the IG as a Respondent, observing that in Erickson v. EPA , ARB No. 03-002, ALJ No. 1999-CAA-2, et al. (ARB May 31, 2006) ( ARB Erickson I ), pending on appeal, Erickson v. EPA , No. 06-14120-E (11th Cir.), it had held that the IG is an integral part of EPA and not properly a separate party Respondent to environmental whistleblower complaints against EPA. The ARB also affirmed the ALJ's dismissal of individual supervisors as Respondents, holding that "they are not proper parties either because supervisors are not 'employers' within the meaning of the environmental whistleblower provisions." USDOL/OALJ Reporter at n.5 (citation omitted).
[Nuclear and Environmental Whistleblower Digest VII A 2]
DISCOVERY; WHERE COMPLAINANT FAILS TO ALLEGE THAT A NAMED RESPONDENT ENGAGED IN A COGNIZABLE ADVERSE ACTION, ALJ DOES NOT ABUSE DISCRETION IN DENYING A DISCOVERY REQUEST BASED ON A MERE HOPE THAT COMPLAINANT CAN DISCOVER EVIDENCE TO SUPPORT HER ALLEGATIONS
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the Complainant sought discovery of documents held in EPA's Office of the Inspector General (IG) that contained her name on the ground that in an earlier case, the ALJ had found that the IG took retaliatory action against the Complainant when it filed a petition for review of the ALJ's recommended decision. The ARB held that the ALJ did not abuse his discretion in denying this discovery request, observing that "petitioning for review of an ALJ recommended decision and order is not an adverse action; it is a right afforded by law. 29 C.F.R. § 24.8(a)." USDOL/OALJ Reporter at n.5 (citation omitted). The Board cited as authority, " Cf. First Nat�l Bank of Az. v. Cities Serv. Co , 391 U.S. 253, 289-290 (1968) (rule disfavoring summary judgment without discovery does not 'permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations.')." Id .
[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; COMPLAINANT NEED ONLY HAVE HAD A REASONABLE PERCEPTION OF VIOLATIONS RATHER THAN PROVE ACTUAL VIOLATIONS; COMPLAINT BASED ON VAGUE NOTIONS, ASSUMPTIONS AND SPECULATION, HOWEVER, IS INSUFFICIENT
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the ARB reviewed the law regarding how correct a Complainant must have been about his or her safety complaint in order to support a 29 C.F.R. Part 24 environmental whistleblower claim:
An employee who makes a complaint to the employer that is "grounded in conditions constituting reasonably perceived violations" of the environmental acts, engages in protected activity. Similarly, expressing concerns to the employer that constitute reasonably perceived threats to environmental safety is protected activity under the environmental whistleblower protections.
The employee need not prove that the hazards he or she perceived actually violated the environmental acts. Nor must an employee prove that his assessment of the hazard was correct. And we have also held that an employee need not prove that the condition he or she is concerned about has already resulted in a safety breakdown. On the other hand, a complaint that expresses only a vague notion that the employer's conduct might negatively affect the environment is not protected. Nor is a complaint that is based on numerous assumptions and speculation.
USDOL/OALJ Reporter at 8 (citations omitted).
[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT CLAIM DOES NOT REQUIRE THAT ANY SINGLE ACT OR SUBSET OF ACTS BE SEVERE AND PERVASIVE, BUT ONLY THAT THE ACTS COLLECTIVELY BE SEVERE AND PERVASIVE
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the Complainant alleged that false and unfounded criticisms by her supervisor contributed to a hostile work environment. The ALJ found that the criticisms had not been severe and pervasive enough to alter the Complainant's terms and conditions of employment and therefore was not harassment. The ARB first corrected an error by the ALJ:
Hostile work environment liability does not require that any single act of harassment or some subset of harassing acts be severe and pervasive enough to alter the complainant's terms and conditions of employment. Thus, the ALJ erred in finding that that a subset of circumstances that allegedly contributed to a multi-factor hostile work environment must themselves be severe and pervasive.
USDOL/OALJ Reporter at 22 (footnote omitted). The ARB, however, affirmed the ALJ's ultimate finding that the criticisms did not contribute to a hostile work environment because the Complainant had not proved that she had been harassed. First, the Complainant claimed that she was harassed when her supervisor "falsely criticized" her for accusing another employee of unlawfully recommending that the Respondent purchase a particular software program. The Board held that "a supervisor's oral rebuke to an employee for impugning a co-worker's judgment or honesty does not constitute harassment." Id . at 23. Second, the Complainant claimed that the manager harassed her by inconsistently criticizing her work as too detailed and not detailed enough. The Board rejected this claim because the Complainant failed to point to any evidence of record to support the assertion. The Board held that the Complainant's third allegation of harassment was frivolous: the manager first asked "Are you sure?" when the Complainant had delivered information to him � but then accepted her word.
[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; EMPLOYER CANNOT BE HELD LIABLE UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS FOR NOT REINSTATING A COMPLAINANT PURSUANT TO AN EARLIER ALJ RECOMMENDED DECISION WHERE THAT EARLIER DECISION IS ON APPEAL
In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), the ALJ had issued a recommended decision in an earlier proceeding involving the same Complainant and Respondent ordering the Respondent to restore the Complainant to a contract specialist position. The Respondent appealed. In the meantime, the Complainant applied for two contract specialists positions, but was not placed on the list of certified eligible candidates because she did not have a college transcript as required by the position announcement.
The instant complaint was based, in part, on the Complainant's allegation that the Respondent refused to place her in a contract specialist position because of her protected activity. The ALJ found no evidence of intentional discrimination based on protected activity and that the Complainant had been treated like any other applicant. However, the ALJ went on to find that if the Respondent had restored the Complainant to a contracting position as he had ordered in the earlier recommended decision, it would not have been necessary for the Complainant to supply a college transcript to be placed on a certified list of eligibles, and that by excluding her, the Respondent had perpetuated and continued the discrimination as found in the earlier proceeding.
The ARB found the ALJ's conclusion to be grossly contrary to law because an ALJ's recommended environmental whistleblower decision that is timely appealed to the ARB has no legal force or effect.
Kirkpatrick v. Action Steel Supply, Inc. , ARB No. 06-070, ALJ No. 2001-STA-60 (ARB Oct. 31, 2006)
Title:
Final Decision & Order
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Summary:
[STAA Whistleblower Digest XIII E]
DISCHARGE OF STAA COMPLAINT BY APPROVAL OF LIQUIDATION PLAN BY BANKRUPTCY COURT
While the case was pending before the ALJ, the Respondent filed for bankruptcy. The Complainant reached a settlement with the Debtor's Official Unsecured Creditor's Committee, and later received a discounted court-approved distribution. The Bankruptcy Court later approved the Committee's amended Liquidation Plan. The ALJ held that the Bankruptcy Court had discharged the Complainant's STAA claim and recommended dismissal of the complaint. On automatic review, the ARB found that the ALJ correctly applied the law to the facts and dismissed the complaint.
Black v. United Parcel Service , ARB No. 06-073, ALJ No. 2006-STA-5 (ARB Oct. 30, 2006)
Title:
Final Decision & Order Approving Settlement & Dismissing Complaint With Prejudice
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Approval of settlement agreement.
Eash v. Roadway Express, Inc. , ARB No. 06-142, ALJ No. 2000-STA-47 (ARB Oct. 27, 2006)
Title:
Final Decision & Order Approving Settlement & Dismissing Complaint With Prejudice
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Summary:
Approval of settlement agreement.
Walters v. Angelo Luppino, Inc. , ARB No. 05-018, ALJ No. 2004-STA-39 (ARB Oct. 26, 2006)
Title:
Final Decision & Order
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Summary:
[STAA Whistleblower Digest IV D 3]
LAYOFF WOULD HAVE OCCURRED DUE TO END OF SEASON AND SENIORITY RIGHTS REGARDLESS OF PROTECTED ACTIVITY
The Complainant requested that the State Police inspect the dump truck she was driving; the Police found major safety deficiencies and took the truck out of service. The Complainant claimed that her subsequent lay off was in retaliation. The Employer, however, contended that the layoff occurred because it did not have another truck or other work for the Complainant to do. The Complainant did not establish at the hearing that this explanation was pretextual. Moreover, even if the Complainant's instigation of the safety inspection was a motivating factor, the ARB agreed with the ALJ's conclusion that the Respondent would not have called the Complainant back to work in any event. The evidence established that due to the seasonal nature of the business and the layoff of more senior drivers, the Complainant would have been laid off regardless of her safety complaints.
Watson v. International Business Machine Corp. , ARB No. 06-009, ALJ No. 2006-LCA-31 (ARB Oct. 20, 2006)
Title:
Notice That the Administrative Review Board Declines to Review the Administrative Law Judge's Decision & Order
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ALJ LACKS AUTHORITY TO HEAR LCA CASE ABSENT PRIOR INVESTIGATION BY WAGE AND HOUR
The ALJ concluded that he was bound by the ARB decision in Watson v. Electronic Data Sys. Corp. , ARB Nos. 04-023, -029, -050, ALJ Nos. 2003-LCA-30 and 2004-LCA-9 (ARB May 31, 2005), in which the ARB had held that in the absence of an investigation by the Administrator of the Wage and Hour Division, an ALJ may neither hear the case nor review the Administrator's decision not to investigate. Under the LCA regulations, in order to obtain review of an ALJ's decision the ARB must accept the case for review. 29 C.F.R. § 655.840(a). In the instant case the ARB issued a notice that it declined to review the ALJ's Decision and Order.