USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION X -- WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY

In Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998), Respondent asserted that because Complainant was seeking compensatory and exemplary damages, and seeking to vindicate private rights rather than public rights, Respondent has a Constitutional right under the Seventh Amendment to a jury trial, citing Granfinanciera, S.A. v. Nordberg , 492 U.S. 33 (1989) and Feltner v. Columbia Pictures Television, Inc. , 118 S.Ct. 1279 (1998). The Board declined to rule on the constitutionality of the subject acts, citing Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 215 (1994); Califano v. Sanders , 430 U.S. 99, 109 (1977); United States v. Bozarov , 974 F.2d 1037, 1040 (9th Cir. 1992).

[Editor's note: Respondent has apparently taken an appeal of this case to the 10th Circuit.]

X A 1 Legislative history

Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982).

The Secretary of Labor adopted the ALJ's Recommended Decision and Order determining that Con Edison violated Section 5851 of the ERA when it discharged its employee and ordered reinstatement. Con Edison petitioned the Court of Appeals to set aside the reinstatement, claiming that the discharge was justified because the employee threatened to kill his supervisor. At the time this dual motive discharge case was decided, no precedent existed in Section 5851 case law. The Court cited Section 5851 legislative history as authority allowing the application of precedent under analogous situations in cases of first impression.

X A 2 1 ADEA authority

In English v. Whitfield, 858 F2d 957 (4th Cir. 1988), the court applied ADEA authority in regard to equitable estoppel from asserting a statute of limitation in an EPS claim.

[Nuclear & Environmental Digest X A 2 b]
MEANING OF "OTHERWISE DISCRIMINATE..."; USE OF TITLE VII DECISIONS FOR GUIDANCE

The ARB observed in Martin v. The Dept. of the Army , ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), that because Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq ., utilizes virtually the same language in describing prohibited discriminatory acts and shares a common statutory origin, the Board and the Secretary have looked to law developed under Title VII for guidance regarding the meaning of the phrase "otherwise discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment."

X A 2 c Relevancy of NLRA case law

National Labor Relations Act case law is particularly relevant to interpretations of the environmental whistleblower provisions administered by the DOL, as the provisions were explicitly modeled on the NLRA. See S. Rep. No. 414, 92d Cong., 2d Sess. 80-81 (1972), reprinted in 1972 U.S.C. C.A.N. 3668, 3748-49. Ewald v. Commonwealth of Virginia, 89-SDW-1 (Sec'y Apr. 20, 1995).

X A 2 d Coal Mine Health and Safety Act

From Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984):

The legislative history of the employee protection provision of the ERA, 42 U.S.C. § 5851, makes it clear that it was drafted with the Coal Mine Health and Safety Act, among other laws, as a model. When section 5851 was added to the Energy Reorganization Act in 1978, the Senate Committee Report on the employee protection provision which became law summarized it saying "This amendment is substantially identical to provisions in the Clean Air Act and the Federal Water Pollution Control Act . . . [and] such provisions were patterned after the [Labor Management Relations Act, 1947] and a similar provision in [the Coal Mine Health and Safety Act]." S. Rep. No. 95-848, ay 15, 1978, reprinted in 1978 U.S. Code Cong. & Ad. News 7303. Thus, section 5851 and the employee protection provision of the Federal Mine Safety and Health Act (a successor statute to the Coal Mine Health and Safety Act) are in pari materia and it is entirely appropriate to look to the legislative history and case law under the mine safety statutes for guidance in interpreting the ERA. Rutherford Food Co. v. McComb, 331 U.S. 772 (1975).

X A 3 Statutory interpretation

The fact that the ERA does not expressly provide for interest on back pay does not preclude it. Items not expressly provided for by the Act are not necessarily precluded.

Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

X A 4 No deference to views of DOE and NRC

In Adams v. United States Dep't of Energy, 87-ERA- 12 (ALJ Mar. 19, 1987), aff'd sub. nom, Wensil v. B.F. Shaw Co., 86-ERA-15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), the administrative law judge found that the Department of Labor does not have jurisdiction to decide a whistleblower complaint brought under ERA section 210, 42 U.S.C. § 5821, where the employers where contractors or subcontractors of the Department of Energy and were not required to apply for or receive a license from the Nuclear Regulatory Commission. The Secretary adopted much of Judge Guill's analysis in Wensil v. B.F. Shaw Co., 86-ERA- 15, 87-ERA-12, 45, 46, 88-ERA-34 (Sec'y Mar. 29, 1990), slip op. at 11 n. 5, aff'd sub nom. Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. denied, 116 L. Ed. 2d 90 (1991), but stated that she did not "feel constrained to defer to the views of DOE or the NRC in this area because section 210 designates the Secretary of Labor as the official responsible for the administration and enforcement of this section of the ERA."

X A 5 Relationship between cases interpreting various nuclear and environmental employee protection provisions

It is appropriate to construe the Clean Air Act in view of case law under other employee protection provisions that were models for the Clean Air Act provision, and in view of the purposes that these provisions are designed to achieve. It is also appropriate to look to cases construing section 210(a) of the ERA, which was modeled on and worded almost identically to the CAA provision.

The Senate Report accompanying the ERA employee protection provision that was ultimately enacted notes that the ERA provision "is substantially identical to the provisions in the Clean Air Act and the Federal Water Pollution Control Act." S. Rep. 95-848, 95th Cong., 2d Sess. 29, reprinted in 1978 U.S. Code Cong. & Ad. News 7303. It follows, therefore, that, in interpreting the nearly identical language in the Clean Air Act, relevant case law developed under the ERA has great precedential value. Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of remand).

X A 5 ERA burden of proof applicable to other Part 24 cases

The ERA burdens of proof are applicable to claims arising under the TSCA whistleblower provision. Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990) (noting that in practice, those burdens of proof had been applied in cases arising under all of the statutes implemented in 29 C.F.R. Part 24, including SWD, CERCLA, CAA, STAA).

[Editor's note: Neither CERCLA nor STAA were implemented by Part 24 at the time of this decision].

X A 6 Liberal construction

The employee protection provisions of the environmental statutes have traditionally been construed broadly. Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994).

[N/E Digest X A 6]
AFFIRMATIVE DEFENSES; NARROW CONSTRUCTION

The ARB in Fields v. Florida Power Corp. , 96-ERA-22 (ARB Mar. 13, 1998), in discussing the interpretation of section 211(g) of the ERA, concluded that "[s]ince the ERA's remedial protection is to be interpreted broadly, any affirmative defenses logically should be interpreted narrowly so as to provide the act's protections to employees who work within the bounds of safety." Id. @ 10.

X A 6 Construction to achieve purposes of Act

Employee protection provisions such as the Clean Air Act's are to be construed broadly and reasonably to achieve their purposes. These purposes are to protect employees who speak up regarding violations of the law. In so doing, employees further the primary purpose of the Clean Air Act which is "to protect and enhance the quality of the nation's air resources so as to promote the public health and welfare and the productive capacity of its population." See also H.R. Rep. 95-294, 95th Cong., 2d Sess. 2, reprinted in 1977 U.S. Code Cong. & Ad. News 1080 ("primary and overriding purpose of the bill remains the prevention of illness or death which is air pollution related and protection of the public health").

Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of remand).

X A 7 Label of regulation used to aid interpretation

In Nolder v. Raymond Kaiser Engineers, Inc., 84- ERA-5 (Sec'y June 28, 1985), the Secretary determined that Fed. R. Civ. P. is to be applied where voluntary dismissals are sought, but left open the question of whether section 24.5(e)(4)(ii) was applicable. In Nunn v. Duke Power Co., 84-ERA-7 (Sec'y Sept. 29, 1989), the Secretary concluded that because section 24.5(e) is labeled "Dismissal for Cause," that regulation was not applicable to voluntary dismissals.

X B Fit of evidence to analytical model

It is important to note that the flow and presentation of evidence in a hearing often will not be as finely tuned and carefully orchestrated as the discussion of these rules may suggest. These rules are to be applied by the ALJ to the extent practicable during the hearing and, of course, to the record as a whole at the close of the hearing.

Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983).

X B Relationship of evidence to legal analysis

Evidence in a particular case may not always be so "finely tuned and carefully orchestrated" as to fit neatly within the analytical rules set forth in Dartey . Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992), citing Dartey v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 9.

X C Circumstantial evidence

In Saporito v. Florida Power & Light Co., 93- ERA-23 (ALJ Nov. 12, 1993), the ALJ recommended dismissal of Complainant's blacklisting complaint based on a telephone call to a second nuclear plant that allegedly resulted in Complainant's dismissal from the second plant, where Complainant was unable to identify the caller or connect him or her to Respondent.

[Nuclear & Environmental Digest X C]
EVIDENCE; PROBATIVE VALUE OF ALLEGED BROAD ENVIRONMENTAL CONTAMINATION BY RESPONDENT

In Cox v. Lockheed Martin Energy Systems, Inc. , ARB No. 99-040, ALJ No. 1997-ERA-17 (ARB Mar. 30, 2001), Complainants argued that the ALJ erred in refusing to admit into evidence certain documents. The ALJ found that the offered documents were offered late and without good cause; the ARB affirmed on that ground, but went on to observe that the documents had little relevance to the case. The ARB concluded that the documents were offered to attempt to demonstrate a broad conspiracy on the part of Respondent to cover up environmental contamination, but had nothing to do with the circumstances of Complainants' termination from employment. The ARB wrote:

While environmental contamination in general is a matter of significant public concern, the Coxes have chosen an inappropriate vehicle for raising any such broader issues. The Labor Department's jurisdiction under the ERA and the Environmental Acts is to enforce the employee protection provisions of these statutes; the documents cited by the Coxes simply have little bearing on the underlying question in this case, i.e. , whether they were chosen for layoff in retaliation for their alleged protected activity.

[Nuclear and Environmental Digest X C and X D]
DIRECT EVIDENCE OF RETALIATORY MOTIVE; STATEMENTS THAT REQUIRE THE DRAWING OF AN INFERENCE ARE CIRCUMSTANTIAL, NOT DIRECT EVIDENCE

In Hall v. United States Dept. of Labor, Administrative Review Board , No. 05-9512 (10th Cir. Feb. 13, 2007), the Complainant argued that the ARB had failed to properly evaluate purported direct and circumstantial evidence of retaliation. The court recited the law in regard to direct evidence:

"Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1207 (10th Cir. 1999) (alterations and quotations omitted), overruled on other grounds by Desert Palace, Inc. v. Costa , 539 U.S. 90 (2003). Direct evidence requires "proof of an existing policy which itself constitutes discrimination," Tomsic v. State Farm Mut. Auto. Ins. Co. , 85 F.3d 1472, 1477 (10th Cir. 1996) (quotations omitted), or "oral or written statements on the part of a defendant showing a discriminatory motivation," Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). "A statement that can plausibly be interpreted two different ways--one discriminatory and the other benign--does not directly reflect illegal animus, and, thus, does not constitute direct evidence." Patten v. Wal-Mart Stores East, Inc. , 300 F.3d 21, 25 (1st Cir. 2002) (quotation omitted). Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements. See Shorter , 188 F.3d at 1207.

Slip op. at 13-14. Upon review of the evidence claimed by the Complainant to constitute direct evidence, the court found that all of it was only evidence from which retaliatory purpose could arguably be inferred. In other words, it was not direct evidence but circumstantial evidence. In one instance of purported direct evidence of retaliation (that a Commanding General had called the Complainant a "traitor"), the ARB had rejected the credibility determination of the ALJ, but had adequately explained its reasons for doing so. The court also found substantial evidence to support the ARB's finding that even if the statement had been made, there was no evidence to suggest that the Complainant subjectively perceived this comment as "hostile."

[Nuclear and Environmental Digest X C]
DIRECT EVIDENCE OF RETALIATION; IF DRAWING OF INFERENCE IS REQUIRED, THE EVIDENCE IS NOT DIRECT EVIDENCE

In Morriss v. LG&E Power Services, LLC , ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), PDF | HTM the ARB described direct evidence of retaliation:

Direct evidence of retaliation is "smoking gun" evidence; evidence that conclusively links the protected activity with the adverse action. Such evidence must speak directly to the issue of discriminatory intent and may not rely on the drawing of inferences. Direct evidence does not include "stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process."

Slip op. at 34 (footnotes omitted).

[Nuclear & Environmental Digest X C]
EVIDENCE; BROAD RANGE OF RELEVANCE IN CIRCUMSTANTIAL EVIDENCE CASE

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided the ALJ with guidance for a remand proceeding in determining evidence admissibility:

... The Secretary and this Board have stated that ... the ALJ as a general rule should refrain from excluding evidence on a technical basis but should consider factors relevant to reliability and probative value in determining the weight to be accorded contested evidence....

In ruling on the relevancy of evidence on remand, the ALJ must apply a standard consistent with the broad range of circumstantial evidence that may be probative of the question of retaliatory intent. See Seater [ v. Southern California Edison , ARB No. 96-013, ALJ No. 1995-ERA-13 (ARB Sept. 27, 1996)] , slip op. at 4-8 (construing controlling regulation regarding relevancy at 29 C.F.R. §24.5(e)(1) (1995), in relationship with directory regulation at 29 C.F.R. §18.403 and mandate of Section 7(c) of the Administrative Procedure Act, 5 U.S.C. §556(d)). The standard provided by Section 24.6(e)(1) regarding the exclusion of only such evidence as is "immaterial, irrelevant or unduly repetitious," incorporates the standard provided by Section 7(c) of the APA, 5 U.S.C. §556(d), and differs from the analogous provision found in the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, at 29 C.F.R. §18.403. See Seater , slip op. at 6 n.8.[42] On remand, the ALJ must also re-examine the exclusion of evidence that he found to be cumulative, ... in view of the foregoing standard, and he must provide the parties an opportunity to respond accordingly.

___

[42] As stated by the Board in the Seater decision, "The mandate of Section 24.5(e)(1) is consistent with the nature of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear to be of little probative value until the evidence is considered as a whole . . . ." Seater , slip op. at 6 n.8.

Slip op. at 33 (some citations and footnotes omitted).

[Nuclear & Environmental Digest X C]
APPLICABILITY OF REEVES TO PART 24 WHISTLEBLOWER CASES

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB provided instructions to the ALJ for a remand proceeding, reminding him to "evaluate the evidence in accordance with general principles applicable to an employment discrimination complaint that is founded on circumstantial evidence." The member continued:

The recent decision of the United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. , 120 S.Ct. 2097 (2000), rev'g 197 F.3d 688 (5th Cir. 1999) contains a comprehensive discussion of the parties' burdens under the framework provided by McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), a case arising under Title VII of the Civil Rights Act of 1964 that has been regularly applied to Part 24 whistleblower cases by the Secretary, this Board and the United States Courts of Appeals, see, e.g., Kahn v. U. S. Sec'y of Labor , 64 F.3d 271, 277 (7th Cir. 1995). We note two basic principles that have frequently been relied on by the Secretary and this Board in whistleblower cases that are quoted in Reeves . First, as stated in St. Mary's Honor Center v. Hicks , 450 U.S. 502 (1993), to find discrimination established, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center , 450 U.S. at 519, quoted in Reeves , 120 S.Ct. at 2108. The second guideline that we believe is particularly instructive is the observation of the Court in United States Postal Service Board of Governors v. Aikens , 460 U.S. 711 (1983), that "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes" for purposes of proving intentional discrimination. Aikens , 460 U.S. at 716, quoted in Reeves , 120 S.Ct. at 2105-06. Finally, we note the guidance provided by the United States Court of Appeals for the Eighth Circuit in Ellis Fischel State Cancer Hosp. v. Marshall , a case which arose under the whistleblower protection provision of the Energy Reorganization Act of 1974,"[t]he presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive." 629 F.2d 563, 566 (8th Cir. 1980).

Slip op. at 41-42.

[Nuclear & Environmental Digest X C]
EVIDENCE; PROBATIVE VALUE OF PURPORTED ADMISSION BY SECRETARY OF ENERGY

In Varnadore v. Oak Ridge National Laboratory , ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-ERA-1 (ARB July 14, 2000), Complainant sought to reopen his case for the receipt of deposition testimony of a former Secretary of Energy which allegedly constituted an admission that the Department of Energy engaged in a pattern and practice of discrimination against whistleblowers. The ARB denied the request to reopen, finding that this admission would have no probative value to show that, in Complainant's particular cases, Complainant was discriminated against.

[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE; SUDDEN, UNEXPLAINED DECLINE IN PERFORMANCE EVALUATION; SHIFTING EXPLANATIONS

In Keene v. Ebasco Constructors, Inc. , 95-ERA-4 (ARB Feb. 19, 1997), the Board found that Complainant was laid-off due to contempt for Complainant's protected activity based on a supervisor's various, unsupported explanations and unexplained downgrade in Complainant's performance rating; the temporal proximity between the supervisor's knowledge of Complainant's complaints and the layoff; Complainant's value to Respondent as a certified electrician with unescorted access; the accuracy of Complainant's complaints and evidence of an attempted coverup; animus exhibited by several supervisors; and the amount of work affected by the alleged violations. This evidence outweighed factors such as the fact that three of seven electricians laid off were as qualified as Complainant (the Board pointed out that the record did not show whether those three had unescorted access clearance); the fact that Complainant was rehired twice after the lay-off (the Board pointed out that the rehiring was only over strong protected by several supervisors); and the fact that Complainant and another worker had earlier acknowledged that the layoff was not retaliatory (the Board pointed out that plausible explanations had been supplied for those earlier statements and that circumstantial evidence can prove retaliatory motive even it a witness testified that such a motive was not perceived).

[N/E Digest X C]
MOTIVE; CIRCUMSTANTIAL EVIDENCE MAY PROVE RETALIATORY PURPOSE EVEN WHEN COMPLAINANT DID NOT PERCEIVE SUCH A MOTIVE

In Keene v. Ebasco Constructors, Inc. , 95-ERA-4 (ARB Feb. 19, 1997), Respondent pointed out as evidence of non-retaliatory motives that Complainant and a co-worker had both acknowledged earlier that Complainant's layoff was not retaliatory. The Board, however, considered other circumstantial evidence and Complainant's and the co-worker's plausible explanations of their earlier statements in finding that the layoff was motivated by contempt for Complainant's protected activity. The Board stated that "the presence or absence of retaliatory motive is provable by circumstantial evidence even if a witness testifies that he did not perceive such a motive." Slip op. at 10 (citations omitted).

EVIDENCE; RETALIATORY INTENT CASE REQUIRES FULL PRESENTATION OF BROAD RANGE OF EVIDENCE
[N/E Digest X C; XI E 3]

In retaliatory intent cases that are based on circumstantial evidence, ... fair adjudication of the complaint 'requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken.' Timmons v. Mattingly Testing Servs. , Case No. 95-ERA-40, ARB Dec., June 21, 1996, slip op. at 10-11 [footnote omitted]; see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3, Ch. 16, Evidence (1980)."

Seater v. Southern California Edison Co . , 95-ERA-13, slip op. at 5 (ARB Sept. 27, 1996).

EVIDENCE; PRINCIPLES GOVERNING EVALUATION OF EVIDENCE OF RETALIATORY INTENT; RELEVANCY OF TECHNICAL MATTERS AND COMPLIANCE WITH SAFETY STANDARDS; RELEVANCY OF NRC INVESTIGATIVE REPORTS
[N/E Digest X C, X G, X N, XI E 3, XI E 7, XI E 10, XI E 11 and XI E 14]

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Board reviewed principles governing the evaluation of evidence of retaliatory intent in ERA whistleblower cases.

The Board indicated that where a complainant's allegations of retaliatory intent are founded on circumstantial evidence, the factfinder must carefully evaluate all evidence pertaining to the mindset of the employer and its agents regarding the protected activity and the adverse action taken. There will seldom be "eyewitness" testimony concerning an employer's mental process. Fair adjudication of whistleblower complaints requires "full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." Slip op. at 11 (footnote omitted).

The Board continued:

Antagonism toward activity that is protected under the ERA may manifest itself in many ways, e.g. , ridicule, openly hostile actions or threatening statements, or, in the case of a whistleblower who contacts the NRC, simply questioning why the whistleblower did not pursue corrective action through the usual internal channels.... In addition, deliberate violations of NRC regulations suggest antagonism toward the NRC regulatory scheme and thus may provide support for an inference of retaliatory intent....

When disciplinary action, including termination from employment, is involved, the past practice of the employer in similar situations is relevant to determining whether there has been disparate treatment, which may provide highly probative evidence of retaliatory intent.[8]...

Furthermore, a complete understanding of the testimony of the witnesses, including testimony regarding technical procedures, is necessary for the drawing of pertinent inferences and the resolution of conflicts in that testimony.... In the instant case, a proper understanding of the testimony of the witnesses concerning relevant technical procedures requires at least a superficial understanding of the fields of radiography and welding inspection.

______
[8] A complainant is not required, however, to establish disparate treatment in comparison to other employees, or other whistleblowers, in order to establish retaliatory intent....

Slip op. at 11-14 (citations omitted). The Board then held that the ALJ erred in refusing, based on relevancy, to hear testimony on technical aspects of the handling of radioactive isotopes at the Respondent's facility, the technical aspects of bridge girder inspection, quality standards and practices prevailing at the Respondent's facility prior to the Complainant's termination, and the Respondent's compliance or non-compliance with NRC safety regulations prior to its investigation by the NRC. The Board found that the ALJ did not err in refusing to hear testimony concerning corrective measure taken after the Complainant's termination, because that evidence is not relevant to the mindset of Respondent's deciding officials at the time of Complainant's termination of employment. On the other hand, "[e]vidence of related action, corrective or otherwise, taken by [the Respondent] following initiation of the NRC investigation but prior to [the Complainant's] termination is relevant to the issue of the mindset of [Respondent's] deciding officials at the pertinent time...." Slip op. at 14 n.9.

[Editor's note: But see Varnadore v. Oak Ridge National Laboratory , 92-CAA 2 and 5, 93-CAA-1 and 3 (ARB June 14, 1996)(ALJ properly terminated line of questioning about supervisor's "brain chemistry)]

The Board also found that the ALJ erred in refusing to admit, on relevancy grounds, two NRC investigative reports -- this evidence was pertinent to the question of retaliatory animus among Respondent's managers, as the NRC reports documented knowing, deliberate violations of NRC regulations by Respondent's management. The Board noted that the ALJ was correct that a complainant is not required to establish an actual violation of NRC regulations, but indicated that he erred in refusing the reports because they could be relevant to retaliatory intent.

RELEVANCY OF INCIDENTS PRECEDING OR GIVING RISE TO PREVIOUS COMPLAINT RESOLVED BY SETTLEMENT
[N/E Digest X C]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ erred in sustaining the Respondent's objections to testimony relevant to incidents that preceded or gave rise to a previous ERA complaint filed by the Complainant that was resolved by a settlement agreement. Such evidence was relevant to the question of retaliatory animus in regard to the instant complaints.

X C Use of circumstantial evidence

The presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

X C Relevance of events outside scope of actionable complaint

In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ Nov. 24, 1992), aff'd (Sec'y Nov. 24, 1992), the administrative law judge found that only those events occurring within thirty days of the filing of the complaint were actionable under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all relevant events as evidence of a possible pattern of discrimination irrespective of their time of occurrence.

X C Circumstantial evidence

X C Burden of proof may be carried by direct or circumstantial evidence

A complainant may carry his or her burden of proof on any element of a discrimination claim by direct or circumstantial evidence. "The presence or absence of a retaliatory motive is a legal conclusion and is provable by circumstantial evidence . . . ." Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980). Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y June 24, 1992), slip op. at 3.

X C Relevance of events outside scope of actionable complaint

In Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ Apr. 26, 1989), aff'd (Sec'y Nov. 24, 1992), the administrative law judge found that only those events occurring within thirty days of the filing of the complaint were actionable under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851(b)(1) and 29 C.F.R. § 24.3(b), but did consider all relevant events as evidence of a possible pattern of discrimination irrespective of their time of occurrence.

X D Direct evidence of discrimination

[Nuclear and Environmental Digest X C and X D]
DIRECT EVIDENCE OF RETALIATORY MOTIVE; STATEMENTS THAT REQUIRE THE DRAWING OF AN INFERENCE ARE CIRCUMSTANTIAL, NOT DIRECT EVIDENCE

"Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1207 (10th Cir. 1999) (alterations and quotations omitted), overruled on other grounds by Desert Palace, Inc. v. Costa , 539 U.S. 90 (2003). Direct evidence requires "proof of an existing policy which itself constitutes discrimination," Tomsic v. State Farm Mut. Auto. Ins. Co. , 85 F.3d 1472, 1477 (10th Cir. 1996) (quotations omitted), or "oral or written statements on the part of a defendant showing a discriminatory motivation," Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). "A statement that can plausibly be interpreted two different ways--one discriminatory and the other benign--does not directly reflect illegal animus, and, thus, does not constitute direct evidence." Patten v. Wal-Mart Stores East, Inc. , 300 F.3d 21, 25 (1st Cir. 2002) (quotation omitted). Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements. See Shorter , 188 F.3d at 1207.

[Nuclear and Environmental Digest X C]
DIRECT EVIDENCE OF RETALIATION; IF DRAWING OF INFERENCE IS REQUIRED, THE EVIDENCE IS NOT DIRECT EVIDENCE

In Morriss v. LG&E Power Services, LLC , ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), PDF | HTM the ARB described direct evidence of retaliation:

Direct evidence of retaliation is "smoking gun" evidence; evidence that conclusively links the protected activity with the adverse action. Such evidence must speak directly to the issue of discriminatory intent and may not rely on the drawing of inferences. Direct evidence does not include "stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process."

Slip op. at 34 (footnotes omitted).

[Nuclear & Environmental Whistleblower Digest X D]
ANALYTICAL APPROACH; ARB ASSUMES (BUT NOT DECIDES) THAT CERTAIN ELEMENTS OF WHISTLEBLOWER COMPLAINT WERE ESTABLISHED WHERE CASE MAY BE DISPOSED OF UPON FAILURE TO ESTABLISH ONE ELEMENT OF THE CAUSE OF ACTION

In Smalls v. South Carolina Electric & Gas , ARB No. 01 078, ALJ No. 2000 ERA 27 (ARB Feb. 27, 2004), the ARB approached the decision on the merits as follows:

The record contains ample evidence, which, if fully credited, could establish three of the four elements necessary for Smalls to carry his burden in this whistleblower complaint B protected activity, the employer's knowledge of protected activity, and adverse action. .... Because we dispose of this complaint based on Smalls' failure to establish that protected activity was a contributing factor in SCE&G's decision to rate Smalls' performance "below expectations," we will assume but not decide that when Smalls raised concerns about the design, installation, and testing of the SIMPLEX system, he engaged in protected activity. Furthermore, we assume without finding that this protected activity was known to the decision makers involved in Smalls' "below expectations" rating, and that such a rating constitutes adverse action. Specifically, we will limit our analysis to the issue of whether Smalls established that this protected activity contributed to his "below expectations" performance rating for the period ending December 1, 1999.

[Nuclear and Environmental Digest X D]
DIRECT EVIDENCE OF RETALIATION; SUPERVISOR'S DISAPPROVAL OF EMPLOYEE'S COMPLAINING TO GOVERNMENT AGENCIES

A supervisor's disapproval of an employee's complaining to a government agency indicates discriminatory intent. See Blake v. Hatfield Elec. Co. , 1987-ERA-4, slip op. at 5 (Sec'y Jan. 22, 1992) (supervisor's comment that the complainant used the NRC as a threat found to "virtually amount[] to direct evidence of discrimination). The supervisor who issued a disciplinary notice for tardiness opined at the hearing that Complainant was not justified in making a complaint to OSHA -- that "I feel that [Complainant] is using OSHA and that the warning was merited." The ARB found that this statement was very strong evidence of discriminatory intent. Fabricius v. Town of Braintree/Park Dept. , 1997-CAA-14 @ 5-6 (ARB Feb. 9, 1999).

[N/E Digest X D]
"SMOKING GUN" EVIDENCE MAY BE REBUTTED

In Webb v. Carolina Power & Light Co. , 93-ERA-42 (ARB Aug. 26, 1997), a recruiter made a log entry about an inquiry she had made with Respondent about resume submissions she had made in regard to engineering positions, to wit: "...Only 1 hire per month & nobody ruled out on this req[uest] except former emp[loyee] Chuck Webb." Webb was the Complainant. Although the record indicated that Respondent was requiring a college degree that Complainant did not have, two other submitted candidates also did not have a college degree. Although this notation appeared to be direct evidence of discrimination, the recruiter testified that she made the notation about Complainant because she only inquired about his fate and not the fate of any of the other candidates who had been submitted. The ARB found the explanation credible, and noted that "[n]otwithstanding a seeming smoking gun' in the record, other evidence may show that there was not discriminatory intent." Slip op. 14 (citation omitted).

[N/E Digest X D]
DIRECT EVIDENCE OF DISCRIMINATION; CONTEXT

In Acord v. Alyeska Pipeline Service Co. , 95-TSC-4 (ARB June 30, 1997), the Board noted that the following statement by Alyeska's Manager of Quality Services to the Vice President for Human Resources, appeared to be direct evidence of discrimination: "ASIS [an inspection service hired by Alyeska, and Complainant's employer] will probably suspend Acord. Acord will probably become a whistleblower shortly." The Board, however, found that, in context, these comments did not constitute sufficient evidence of discrimination. Complainant had a longstanding history of performance deficiencies, and at the time the statement was made, frustration with Complainant in regard to lack of timely documentation of reports was evident.

DIRECT EVIDENCE OF DISCRIMINATION
[N/E Digest X D]

In Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), a statement in a suspension notice that the Complainant was "creating quality concerns: not adhering to self verification method and work requirements" was not direct evidence of animus. The Secretary found that the phrase was ambiguous, and that when viewed in context, merely reflected the supervisor's concern that the Complainant created quality concerns by knowingly working in violation of procedures.

DIRECT EVIDENCE OF DISCRIMINATION; DARTEY NOT APPLICABLE
[N/E Digest X D]

Where there is direct evidence of discrimination, it is not necessary to engage in the familiar Dartey v. Zack Co. allocation of burdens of proof and burdens of production applicable in cases limited to circumstantial evidence. It is prohibited retaliation where the evidence of discrimination and the discriminatory act are the same, such as discriminatory statements in an employment reference check. Gaballa v. The Atlantic Group, Inc. , 94-ERA-9 (Sec'y Jan. 18, 1996).

In Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary recited the familiar allocation of burdens of proof and production, but interestingly changed the introductory language to state that "a complainant who seeks to rely on circumstantial evidence of intentional discriminatory conduct must first make a prima facie case of retaliatory action by the respondent . . ." Slip op. at 6 (bold-italics added).

DIRECT EVIDENCE OF RETALIATORY DISCRIMINATION; EVIDENCE OF DISCRIMINATION MUST BE "PATENT"
[N/E Digest X D]

Holding that a supervisor's statement that "I don't want any contractors working on problems which they discovered" was not direct evidence of retaliatory discrimination against a "staff augmentee" employee when he was not rehired, the court in Bartlik v. United States Dept. of Labor , 1996 U.S. App. LEXIS 394, 1996 Fed. App. 0012P (6th Cir. 1996)(case below, 88-ERA-15), noted that "[t]he distinction between direct and circumstantial evidence in employment discrimination cases is not self-evident." Bartlik , 1996 U.S. App. LEXIS 294 at *7 n.5 (citations omitted). The court observed that "[i]n the context of discrimination cases in this circuit . . . we have held that direct evidence is evidence which, if believed, 'requires the conclusion that unlawful discrimination was at least a motivating factor.' See Talley v. Bravo Pitino Restaurant, Ltd. , 61 F.3d 1241, 1248 (6th Cir. 1995) (citing Terbovitz v. Fiscal Court of Adair Cty. , 825 F.2d 111, 115 (6th Cir. 1987)). With direct evidence, the existence of unlawful discrimination is 'patent.' Id ." Bartlik , 1996 U.S. App. LEXIS 294 at *7 n.5.

X D Direct evidence of discrimination

In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the respondent's articulated legitimate reason for laying off the complainant -- his low numerical score on his most recent performance evaluation -- was found to be a pretext for retaliation. Particularly persuasive in this regard was a supervisor's comment on the performance evaluation that the complainant "[u]ses NRC as a threat", which virtually amounts to direct evidence of discrimination.

This was not merely a "stray remark" in the work place, Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Conner, J., concurring), but meets the test that the remark "speak[s] directly to the issue of discriminatory intent, [and] . . . relate[s] to the specific employment decision in question." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989); see also Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), and cases cited therein (comments by a manager or those closely involved in employment decisions may constitute direct evidence of discrimination).

Where there is direct evidence that discrimination motivated the adverse employment decision, the sole question is whether the respondent has met its burden of "proving by a preponderance of the evidence that it would have made the same decision even if it had not take the [illegitimate criteria] into account." Price Waterhouse, 490 U.S. at 258 (plurality opinion).

In the instant case, the respondent, by relying exclusively on the performance rating as justification for discharging the complainant, did not offer any convincing non-discriminatory rationale for its evaluation.

Even if an inference must be drawn from the supervisor's comment that the evaluation was discriminatorily motivated, see Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982) (no inference of discrimination required when direct evidence is presented), the statement was strong evidence that the complainant's low score was pretextual.

X D Direct evidence of discrimination

Comments made by a manager or those closely involved in employment decisions may constitute direct evidence of discrimination. Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 5, citing Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989); Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991).

X E 1 Credibility determinations

If credibility determinations are critical, the agency must articulate them with sufficient clarity to determine whether the ultimate finding of liability is supported by the record.

Courts have held that "[w]here an agency's decision concerns specific persons based upon determination of particular facts and the application of general principles to those facts . . . courts 'demand that the decision-maker's opinion indicate an appropriate consideration of the evidence. . . .'"

Bartlik v. Tennessee Valley Auth., 88-ERA-15 (Sec'y Dec. 6, 1991), quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983) (citation omitted).

[Nuclear and Environmental Whistleblower Digest X E 1]
CREDIBILITY DETERMINATIONS; FINDING THAT COMPLAINANT WAS CREDIBLE INADEQUATE BASIS FOR EVALUATION OF CONFLICTING EVIDENCE

In Hall v. United States Army Dugway Proving Ground , ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ALJ erred when he made a general and conclusory finding that the Complainant was credible, but did not explicitly evaluate the credibility of 50 other witnesses (40 of whom were adverse to the Complainant). The Board wrote: "[A]n ALJ may not evade his responsibility to evaluate conflicting testimony by many witnesses on various disputed issues of fact by the expedient of decreeing the complainant as the most credible witness on any issue." Slip op. at 29 (citation omitted).

[Nuclear & Environmental Whistleblower Digest X E]
CREDIBILITY; COMPLAINANT'S LACK OF CREDIBILITY AS A WITNESS AND INSUBORDINATE CONDUCT AS A EMPLOYEE MAY LEND CREDENCE TO RESPONDENT'S CASE

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB when considering whether the Complainant had proved by a preponderance of the evidence that the Respondent intentionally discriminated against her in violation of the whistleblower laws, took into consideration Complainant's credibility and conduct. The ARB agreed with the ALJ that Complainant's credibility and conduct were central to the resolution of the case both because her testimony conflicted with other witnesses, and because, the ARB quoting the ALJ "her perception of events is the principal component in her belief that she has been discriminated against for her protected activity."

Deferring to the ALJ's demeanor based credibility determinations, and finding more than adequate support in the record for the ALJ's findings that Complainant was an exceedingly poor witness and insubordinate and disrespectful employee, the ARB held that her "qualities as a witness cast doubt upon her interpretation of the evidence and give credence to EPA managers' testimony that they made decisions pertaining to her based upon considerations that the law recognizes as legitimate and non discriminatory."

[Nuclear & Environmental Whistleblower Digest X E]
INDICIA OF WITNESS RELIABILITY FOR RESOLVING CONFLICTS IN TESTIMONY

In addition to demeanor while testifying, indicia of witness reliability that may be applied to resolve relevant conflicts in the testimony include "witness self interest, whether or not a witness' testimony is internally consistent, inherently improbable, or either corroborated or contradicted by other evidence. See Bartlik v. Tennessee Valley Auth. , No. 88 ERA 15, slip op. at 5 n.2 (Sec'y Apr. 7, 1993) and cases there cited." Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002).

[N/E Digest X E]
CREDIBILITY DETERMINATIONS; FACT THAT RESPONDENT COMMITTED VIOLATIONS EXACTLY AS ALLEGED BY COMPLAINANT

In Keene v. Ebasco Constructors, Inc. , 95-ERA-4 (ARB Feb. 19, 1997), the Board found that the fact that Respondent did commit a falsification of records exactly as alleged by Complainant, and then attempted to conceal this wrongdoing from the licensee, undermined the credibility of several of Respondent's witnesses, and lent more credence to Complainant's account.

EVIDENCE; PROBATIVE VALUE OF EXPERT WHOSE PAYMENT IS CONTINGENT ON OUTCOME OF LITIGATION
[N/E Digest X E]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), the ALJ excluded a proposed expert witness on the question of whether surveillance by Respondent was possible on the ground that the witness' objectivity was so questionable as to be of little probative value. The witness had made statements indicating sympathy toward Complainant and antipathy toward Respondent, and indicated that he intended to discount his fee if Complainant did not prevail. The Board agreed with the ALJ that the witness' ability to present reliable testimony in the case, but stated that the appropriate course would have been to admit the evidence and consider the reliability of the testimony when weighing the evidence. The Board found the error harmless, however, because of the lack of evidence on surveillance generally made Respondent's capability to engage in surveillance unimportant. Such testimony would be relevant, however, if Respondent had contended that such surveillance was not technically possible.

The Board also noted the impropriety of contingent fee arrangements for expert witnesses.

CREDIBILITY DETERMINATIONS; NOT REVERSIBLE ERROR NOT TO MAKE INDIVIDUAL CREDIBILITY DETERMINATIONS WHERE THE VAST MAJORITY OF WITNESSES SUPPORTED THE ALJ'S CONCLUSIONS, THE COMPLAINANT'S TESTIMONY WAS NOT CREDIBLE, AND ALJ'S DECISION WAS EXTREMELY THOROUGH
[N/E Digest X E]

Noting that "[w]ithout exception, the findings of fact rendered by the ALJ reflect[ed] a thorough review of the record and a careful evaluation of the evidence" the Secretary in Straub v. Arizona Public Service Co. , 94-ERA-37 (Sec'y Apr. 15, 1996), rejected the Complainant's position that the ALJ committed reversible error by not addressing the credibility of each of the witnesses who testified in the twenty- three days of testimony before the ALJ. The Secretary observed that Complainant's case rested heavily on his own, uncorroborated testimony, and that the ALJ had properly discredited the Complainant's testimony on several dispositive issues. The Secretary also observed that the vast majority of witnesses supported the ALJ's conclusions.

CREDIBILITY DETERMINATIONS; REQUIREMENT THAT ALJ EXPLICITLY STATE WHAT EVIDENCE IS ACCEPTED OR REJECTED
[N/E Digest X E 1]

To be sustained, all factual findings, including credibility determinations, must be supported by substantial evidence on the record considered as a whole. Where a factfinder's credibility determinations are not based on adequate reasons, his or her findings cannot be upheld. All relevant, probative and available evidence must be weighed by the factfinder who must make explicit statements as to what portions of the evidence are accepted or rejected. A full explanation of why specific evidence was rejected is imperative, since a factfinder cannot reject evidence for no reason or for the wrong reason. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995), quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1979).

TESTIMONY; LACK OF CORROBORATING WITNESSES
[N/E Digest X E]

Where a Complainant testified that she had learned about certain instances in which a former supervisor had provided adverse references to her employers or to a prospective employer, but that testimony was not corroborated and the former supervisor denied speaking to that Complainant's co- workers or being aware that she worked for the respective employers, the Secretary found that the Complainant had failed to produce the witnesses necessary for substantiation of her blacklisting charge. Leveille v. New York Air National Guard, 94-TSC-3 and 4, slip op. at 9-10 (Sec'y Dec. 11, 1995).

X E Credibility determinations; sufficient clarity

Where credibility determinations are critical to an ALJ's recommended decision, and ALJ's statement in the introduction of the decision that his "findings and conclusions are based upon [his] observation of the appearance and demeanor of the witness. . . . " is not sufficient for the Secretary to review the recommended decision.

Bartlik v. Tennessee Valley Auth., 88-ERA-15 (Sec'y Dec. 6, 1991)

[NOTE: The Secretary found that the "ALJ did not cite or discuss any testimony or exhibits which support that conclusion, nor did he resolve any of the apparent conflicts in the record . . ., or state which testimony he credited and which he did not." She then detailed in length the problems with the case that made credibility determinations so critical, and remanded the case to the ALJ.]

X E 1 Sufficient clarity of credibility determinations

In Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y Dec. 6, 1991), the Secretary remanded the case to the administrative law judge to revise his recommended decision and order specifically addressing several evidentiary questions "and supporting his inferences and conclusions with explicit references to the record." Slip op. at 17. Citing Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983), the Secretary stated that "[i]f credibility determinations are critical, the agency must articulate them with sufficient clarity to determine whether the ultimate finding of liability is supported by the record." She faulted the ALJ for not making specific credibility findings. Slip op. at 5. She held that the "ALJ's statement in the introduction of the decision that his 'findings and conclusions are based upon my observation of the appearance and demeanor of the witnesses . . .' is not sufficient for the Secretary to review the recommended decision." Slip op. at 9.

X E 2 Demeanor of witness

The Secretary rejected the complainant's argument that the ALJ's credibility determination that the respondent's witnesses were credible was based on an analysis of the testimony rather than on the demeanor of the witnesses, where, although the ALJ found that the testimony on the issue was uncontradicted, he specifically stated that "I had an opportunity to observe both of these witnesses for [the respondent], and I find their testimony to be fully credible."

Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), slip op. at 7.

[Nuclear & Environmental Digest X E 2]
CREDIBILITY; DEMEANOR

In Jenkins v. U.S. Environmental Protection Agency ,1988-SWD-2 (ALJ July 10, 1998), the ALJ noted that Complainant's "credibility is the key issue in this case, both because there is frequent conflict between her version of events and that of other witnesses and because her perception of events is the principal component in her belief that she has been discriminated against for her protected activities." Id. @ 21-22. The ALJ thoroughly analyzed the record and noted his observations about Complainant's demeanor, and found that Complainant was so emotionally involved in the case that her testimony was inherently unreliable, and absent corroborating evidence, insufficient to establish any controverted fact.

WITNESSES; REQUIREMENT THAT ALJ MAKE FINDINGS REGARDING WITNESS DEMEANOR
[N/E Digest X E 2]

An ALJ should provide findings concerning witness demeanor in connection with resolution of conflicts in the pertinent controverted testimony. In resolving conflicts in testimony, however, the ALJ may also rely on factors related to the content of the witnesses' testimony, such as internal inconsistency, inherent improbability, important discrepancies, impeachment and witness self-interest. Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996).

CREDIBILITY DETERMINATIONS; SCOPE OF DEFERENCE TO DEMEANOR FINDINGS VERSUS FINDINGS BASED ON SUBSTANCE OF TESTIMONY
[N/E Digest X E 2]

Credibility findings that are explicitly based on the demeanor of the witnesses may be accorded exceptional weight by a reviewing court. These demeanor findings are distinct from credibility findings based on the substance of the testimony itself, e.g., internal inconsistency, inherent improbability, important discrepancies, impeachment, and witness self-interest. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).

X E 3 Consistency of testimony; time of discharge; time of hearing

Where the respondent presented evidence that it terminated the complainant's employment based on past horseplay, ineffective supervision of subordinates and production problems, rather than the complainant's engaging in protected activity, inasmuch as this evidence tended to show that the respondent's action was motivated by legitimate, nondiscriminatory reasons, the Secretary concluded that it rebutted the complainant's prima facie case (if indeed the complainant had in fact even established a prima facie case).

The Secretary noted that the explanation given by the respondent at the time of the discharge was consistent with the testimony adduced at the hearing. [Editor's note: apparently the purpose of this note is to show credibility]

Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), slip op. at 7.

[N/E DIGEST X E 3]
EVIDENCE OF PRIOR CONVICTIONS; ADMISSIBILITY/WEIGHT

In Ishmael v. Calibur Systems, Inc. , 96-SWD-2 (ALJ June 23, 1997), evidence of prior convictions offered by Respondent to rebut deposition testimony of Complainant that he had never been convicted of any crime except speeding tickets was admitted into evidence by the ALJ, but afforded little weight because they had not been produced pursuant to a specific discovery request, and because the convictions were more than ten years old and were for misdemeanors. See 29 C.F.R. § 18.609; United States v. Sims , 588 F.2d 1145, 1147 (6th Cir. 1978).

X. E. 3. Consistency of testimony

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.

Respondent asserted that it was error for the ALJ to credit any of Complainant's testimony because Complainant was not truthful about his employment after Respondent fired him, and Complainant lied about the telephone call.

The Secretary dismissed this exception because Respondent did not identify specific parts of Complainant's testimony that were relied on by the ALJ that were not supported by other parts of the record, and led the ALJ to erroneous conclusions.

In addition, the Secretary stated that the ALJ's conclusion, which he adopted, that Respondent was motivated by retaliation when it fired Complainant, was based largely, if not entirely, on documentary evidence, the testimony of Respondent's witnesses, and the taped meetings between Complainant and one of Respondent's employees.

X E 3 Deposition testimony, credibility can be judged based on consistency of testimony

Where a witness' testimony is offered by deposition, it is not improper for the ALJ to make credibility determinations that are based on evidentiary inconsistencies which did not require the ALJ witness the witness' demeanor. See Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

X.E.3. Failure to supply corraborating records

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Complainant asserted that he engaged in protected activities by making reports to various government agencies about unexploded ordnance and a pesticide dump at the Respondent's nuclear reservation. In support of his testimony, the Complainant only submitted unauthenticated photographs. Although he stated that he had copies of the reports and provided them to counsel for Westinghouse, he did not offer any of the documents into evidence. The Secretary concluded that the Complainant's uncorroborated testimony and unauthenticated photographs did not establish that he engaged in protected activities. If the Complainant possessed copies of the documents that show his protected activities, he should have offered them into evidence.

X. E. 3. Consistency of testimony

X E 4 Weight to be given depositions at which no opportunity to cross examine was afforded

In Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993), Respondent's counsel initially indicated that he would not call two witnesses, but then took their deposition one day before the hearing with only one day's notice to opposing counsel, and submitted the deposition at trial. Complainant's counsel did not participate in the depositions. The ALJ received both depositions over strenuous objection by Complainant's counsel.

In view of the lack of cross examination, the Secretary given little weight to the testimony in the depositions.

EVIDENCE; LACK OF OPPORTUNITY FOR RESPONDENT TO DEPOSE WITNESS NOT GROUND FOR DENIAL OF TESTIMONY WHERE RESPONDENT WAS PROVIDED A WRITTEN STATEMENT OF PROPOSED TESTIMONY
[N/E Digest X E 4]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), the ALJ refused to allow the testimony of a severely ill witness to be taken by telephone before Respondent was given an opportunity to depose that witness on the ground that without that opportunity, Respondent would be deprived of an adequate opportunity to respond to the witness' testimony. The Board held that a statement signed by the proposed witness given to Respondent one week prior to the hearing provided it with notice of the matters on which the witness could be expected to testify. The Board also noted that the expected testimony concerned matters about which Respondent should have been readily able to frame a rebuttal response.

X F Evidence

The hearing before the administrative law judge in an Energy Reorganization Act whistleblower case is de novo. Smith v. Tennessee Valley Auth., 87-ERA-20 (Sec'y Apr. 27, 1990). Thus, a document prepared by the employer in response to investigative proceedings before the Wage and Hour Administrator is not dispositive. Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992) (ALJ had questioned a witness who had actually determined Complainant's performance ratings and found that his testimony was more credible than a letter from a management official that had indicated that Complainant had been laid-off, in part, due to his part in refusing to do vendor evaluations).

X G 1 Memorandum of understanding between NRC and DOL

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).

The Court of Appeals addressed the possibility that complaints concerning employment discrimination could be intertwined with matters specifically concerning substantive questions of nuclear safety. For that reason it declared that jurisdiction over employment matters resides in the Secretary of Labor and the NRC is not free to accept jurisdiction concurrently or in its discretion. However, to safeguard the rights of all parties involved in such an employment proceeding, a memorandum of understanding was signed between the Department of Labor (DOL) and the Nuclear Regulatory Commission (NRC) concerning employee protection. See 47 Fed. Reg. 54585 (1982). This memo recognizes that each agency agrees to exchange information concerning any particular allegation. DOL is to investigate and conduct hearings on employee complaints and can order a violator to abate the violation. DOL is to notify the NRC of any complaint filed with DOL alleging discrimination under the ERA and of any hearings on a complaint. The NRC does not have direct authority to provide the employee with a remedy but the NRC may provide technical assistance to the Secretary pursuant to the memorandum.

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Board reviewed principles governing the evaluation of evidence of retaliatory intent in ERA whistleblower cases.

The Board continued:

Antagonism toward activity that is protected under the ERA may manifest itself in many ways, e.g. , ridicule, openly hostile actions or threatening statements, or, in the case of a whistleblower who contacts the NRC, simply questioning why the whistleblower did not pursue corrective action through the usual internal channels.... In addition, deliberate violations of NRC regulations suggest antagonism toward the NRC regulatory scheme and thus may provide support for an inference of retaliatory intent....

When disciplinary action, including termination from employment, is involved, the past practice of the employer in similar situations is relevant to determining whether there has been disparate treatment, which may provide highly probative evidence of retaliatory intent.[8]...

Furthermore, a complete understanding of the testimony of the witnesses, including testimony regarding technical procedures, is necessary for the drawing of pertinent inferences and the resolution of conflicts in that testimony.... In the instant case, a proper understanding of the testimony of the witnesses concerning relevant technical procedures requires at least a superficial understanding of the fields of radiography and welding inspection.

______
[8] A complainant is not required, however, to establish disparate treatment in comparison to other employees, or other whistleblowers, in order to establish retaliatory intent....

[Editor's note: But see Varnadore v. Oak Ridge National Laboratory , 92-CAA 2 and 5, 93-CAA-1 and 3 (ARB June 14, 1996)(ALJ properly terminated line of questioning about supervisor's "brain chemistry)]

a
10 g 1
X G 1 Technical assistance from the NRC

Although section 5851 of the ERA vests jurisdiction over employee discrimination matters in the Secretary of Labor, in the event that substantial questions involving competence in nuclear energy are involved, the NRC may provide technical assistance to the Secretary pursuant to a memorandum of understanding between the DOL and NRC, which is published at 47 Fed. Reg. 54585 (1982). Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).

X H Stipulations; binding effect

In Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993), Complainant stipulated that the amount of unemployment compensation benefits he received would be deducted from the back pay award. Noting that the Secretary normally does not deduct unemployment compensation from a back pay award, the Secretary nonetheless found that the stipulation was not so contrary to public policy as to warrant nonenforcement in the instant case. The Secretary noted that absence a provision in a stipulation that might be contrary to public policy, a stipulation is like a settlement or a contract and the parties should be held to their bargain.

Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), rev'd on other grounds, Ebasco Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993)

See also Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir. 1989) (stipulation binding unless relief from stipulation necessary to prevent manifest injustice, or stipulation entered into through inadvertence or based on erroneous view of the facts or law).

STIPULATIONS; AGREEMENT BETWEEN COUNSEL ON TRIAL PROCEDURE
[N/E Digest X H]

In Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996), Complainant objected to receipt of one of Respondent's exhibits, at which point Respondent's counsel reminded the ALJ of the parties' agreement the previous day when Respondent waived objection to one of Complainant's proffers in exchange for Complainant's agreement not to object to the variety of exhibits now being offered by Respondent. The ALJ commented that it was not his role to enforce contracts between counsel. The Board noted "that the parties are considered to be bound by their stipulations. See, e.g., 29 C.F.R. §§ 18.17, 18.51." Slip op. at 15-16 n.25.

X H Stipulations enforced unless contrary to public policy

The parties' stipulations in ERA whistleblower complaints will be enforced unless contrary to public policy. Thus, where a stipulation on the payment of attorney fees and costs was not contrary to public policy, the Secretary approved it in Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y May 31, 1995).

X H Separate statements in post-hearing briefs may be viewed as stipulation

Where both the complainant and the respondent agreed in their post-hearing briefs to the ALJ to use a seven/seven shift for calculating back pay, the statements in the separate documents may be viewed as a stipulation as to how to calculate back pay. Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

X I Sealing of record

Where a settlement agreement included a provision in which the parties agreed to maintain the strictest confidentiality of the terms of the agreement, and the parties at the hearing asked the ALJ to keep the agreement under seal if possible, but that if it were not possible that it would not cause the agreement to fail, the Secretary accepted the agreement but left the unsealed the agreement and incorporated it into the administrative record of the case. She noted that the parties had not presented any reason for sealing record in regard to the settlement agreement. Vogel v. Florida Power Corp., 90-ERA-49 (Sec'y Mar. 12, 1991).

[Nuclear and Environmental Whistleblower Digest X I]
EVIDENCE; PROTECTION OF CONFIDENTIAL OR PRIVILEGED INFORMATION

In Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3, the ALJ addressed the problem of protecting purportedly confidential information disclosed in the course of an administrative adjudication. In Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Nov. 3, 2004), the ALJ denied a motion for a protective order filed by the Respondent where there were no declarations or affidavits offered in support of the motion and the Respondent's treatment of the issues involved was too superficial. The Respondent's motion would have covered both materials made available in discovery but never filed with the ALJ, and pleadings and evidence that would become subject to FOIA as records of the Secretary of Labor. The ALJ noted that there is a presumptive right of access to adjudicative filings, including before Article I tribunals. The ALJ granted the Respondent time to submit additional evidence and argument regarding the ALJ's authority and the procedures to be followed. The ALJ later issued a protective order governing the production and use of confidential information during the pendency of the action and thereafter. Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Dec. 6, 2004) ("Protective Order"). In a separate order, the ALJ voiced doubt that pleadings, motions and materials filed in the record as evidence may be shielded from public disclosure, and therefore declined to make any a priori rulings that pleadings may be sealed; rather the ALJ directed the parties to first negotiate the issue and, if unsuccessful, file a motion to seal pleadings, motions or evidence in the same manner as in a U.S. District Court. The ALJ noted that there is a distinction between confidentiality concerns and the invocation of privileges, and directed that if a privilege is claimed, privilege logs should be prepared. Wallace v.CH2M Hill Group, Inc. , 2004-SWD-3 (ALJ Dec. 6, 2004) ("Order on Respondent's Application for Protective Order").

X I Sealing of record

In Guity v. Tennessee Valley Authority, 90-ERA-10 (ALJ May 19, 1993) (prehearing order), the ALJ placed a document concerning the Complainant's mental capacity to proceed to hearing in a restricted access portion of the administrative record pursuant to 29 C.F.R. § 18.56. The Respondent had quoted a physician's recommendation concerning the Complainant in violation of a United States District Court order of seal. Both parties agreed that the document violated the district court's order.

The ALJ found that the district court's order of seal prevented public access to this material by operation of law. In the alternative, he found that the Complainant's interest in privacy outweighed any public interest in the document, issued a protective order, and sealed the document.

X. J. Evidence; revealing a communication or advice to a client when the attorney and client become opponents in a subsequent controversy

[Editor's note: For later history, see Willy v. Admin. Rev. Bd. , 423 F.3d 483 (5th Cir. 2005).]

Respondent excepted to the admission into evidence of annotated copies of Complainant's report on purported violations of the environmental laws, arguing that introduction of those exhibits was prohibited by Respondent's claim of attorney-client privilege, and that it placed Respondent at an unfair disadvantage because Respondent could not rebut it through other privileged documents or by permitting its employees to answer questions about the exhibits without having waived the privilege.

The Secretary reviewed Supreme Court Standard 503-Lawyer Client Privilege, the Model Rules of Professional Conduct, the Model the Code of Professional Responsibility, the Texas Disciplinary Rules of Professional Conduct, and the Fifth Circuit decision of Doe v. A Corp., 709 F.2d 1043 (5th Cir. 1983) (decided under the Canons of Ethics). This authority uniformly indicates that an attorney may reveal a communication or advice to a client when the attorney and client become opponents in a subsequent controversy, to the extent necessary to defend his or her rights. The Secretary concluded, therefore, that it was not error for the ALJ to admit in evidence annotated copies of Complainant's draft report.

X J Attorney as witness; disqualification of law firm

In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ July 27, 1990) (predecision order) (applying 11th Circuit law), the ALJ analyzed a conflict in laws, and concluded that under the relevant law, the fact that a member of the law firm representing the respondent was going to be called as a witness did not disqualify the entire firm.

X. J. Evidence; revealing a communication or advice to a client when the attorney and client become opponents in a subsequent controversy

[Editor's note: For later history, see Willy v. Admin. Rev. Bd. , 423 F.3d 483 (5th Cir. 2005).]

X K Recognition of DOL expertise

In Macktal v. Garde, No. 89-2533 JGP (D.C. D.C. May 11, 1992) (unpublished memorandum opinion) (available at 1992 U.S. Dist. LEXIS 6330), a district court stayed plaintiff's legal malpractice action (which is grounded in purported malfeasance, fraud and duress concerning a settlement of an ERA whistleblower complaint) pending resolution of the administrative proceeding. ost of the decision is beyond the scope of DOL proceedings. The court, however, stated

There can be no doubt that the Department of Labor is the governmental body with particular expertise in the area of whistleblower actions, and this action calls into direct question the integrity of a settlement agreement purportedly reached in that tribunal. [footnote omitted] ....

X L Hearsay not inadmissible

Hearsay is not inadmissible in administrative proceedings merely because it is hearsay. See 29 C.F.R. §§ 18.44(b) and 24.5(e) (1989). Pogue v. United States Dept. of the Navy, 87-ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987) slip op. at 24 n.16.

HEARSAY; DISCUSSION OF COMPLAINANT'S PROTECTED ACTIVITIES AMONG MANAGERS
[N/E Digest X L ]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary held that the ALJ erred in sustaining objections to testimony adduced for the purpose of showing the degree to which the Complainant s protected activity was discussed among the Respondent's managers, noting that hearsay only involves statements offered to prove the truth of the matter asserted, 29 C.F.R. § 18.801(c), and that then existing mental, emotional or physical conditions are not excluded by the hearsay rule. 29 C.F.R. § 18.803(a)(3).

X L Use of hearsay in administrative proceedings

In Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (ALJ July 25, 1986), settled while under review (Sec'y Apr. 18, 1989), the Director of the Field Office of Investigations (Region 5) of the NRC testified in regard to allegations of deliberate wrongdoing by management personnel of Respondent that he had received from other employees of Respondent on or around the time that Complainant was terminated. On cross-examination, he declined to state the names of the informing employees. Respondent moved to strike based on hearsay upon hearsay and based on inability to make effective cross- examination.

The ALJ noted that hearsay is admissible in administrative proceedings, quoting Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980):

Not only is there no administrative rule of automatic exclusion of hearsay evidence, but the only limit to the admissibility of hearsay evidence is that it bear satisfactory indicia of reliability . . . [T]he test of admissibility [requires] that the hearsay be probative and its use fundamentally fair. [citations omitted]

Id. at 148. See also 20 C.F.R. § 18.44(b).

The ALJ also outlined the law regarding informer's privilege, noting that the leading case is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, and that although Roviaro was a criminal case, its principles have been applied to civil cases in general, and in the administrative context, to claims arising under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. See, e.g., Donovan v. Forbes, 614 F. Supp. 124.

Combining the hearsay and informer's privilege principles, the ALJ concluded that whether the investigator's testimony should be stricken depended on (1) its reliability, (2) whether its use will unduly prejudice the defendant, and (3) whether the NRC's need to protect its sources outweighs the defendant's need for their disclosure. He also considered whether the underlying purpose of section 5851 of the ERA would be served by admission of the testimony.

The ALJ considered in regard to reliability the indicia stated in Calhoun v. Bailor :

the bias of the declarant

whether the statements are signed and sworn as opposed to anonymous, oral, or unsworn

whether or not the declarant is available to testify, and if not, whether no evidence is available,

the credibility of the witness testifying to the hearsay, and

whether or not the hearsay is corroborated by other evidence.

Calhoun , 626 F.2d at 149.

Weighing these factors, the ALJ found the investigator to be a very credible witness and that most of what he testified to was corroborated. He found that Respondent was prejudiced by the testimony, but that it would be alleviated by according little weight to that part of the investigator's testimony that was not corroborated by other evidence. He found that NRC's role in protecting safety of nuclear power plants was of such magnitude that its need to protect its sources outweighed Respondent's need for their disclosure. Finally, the ALJ found that the underlying purpose of the employee protection provision of the ERA would not be served if an employee who gave evidence of prohibited discrimination on behalf of a fellow employee could incur similar discrimination as a consequence.

The ALJ, therefore, admitted the testimony, but gave little weight to uncorroborated allegations, and no weight to unsupported expressions of opinion concerning the motives Respondent's management personnel.

X M Relevancy of efficacy of NRC regulations

Expert testimony on the efficacy of procedures and standards established in NRC regulations to protect workers from airborne radioactive materials is inappropriate in a hearing under section 5851 of the ERA, and may not be introduced.

Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984):

X n Relevancy of NRC Notice of Violation

In Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), the Secretary ruled that a NRC Notice of Violation letter and appendix (which purportedly found that some of Complainant's allegations could lead to violations, personnel exposure to radiation and other consequences) was not admissible primarily because

complainants are protected from the earliest stage in which they are engaged in the protected activity and it does not matter in determining whether adverse action against the complainant was taken because of the protected activity, that the end result of the activity was or was not an NRC notice of violation.

but also because

Section 24.7(b) of 29 C.F.R. Part 24 requires that the Secretary's final order be based on the record and recommended decision of the ALJ, and since the NRC Notice was not part of the record below, it could not be considered.

In Timmons v. Mattingly Testing Services , 95- ERA-40 (ARB June 21, 1996), the Board reviewed principles governing the evaluation of evidence of retaliatory intent in ERA whistleblower cases.

The Board continued:

Antagonism toward activity that is protected under the ERA may manifest itself in many ways, e.g. , ridicule, openly hostile actions or threatening statements, or, in the case of a whistleblower who contacts the NRC, simply questioning why the whistleblower did not pursue corrective action through the usual internal channels.... In addition, deliberate violations of NRC regulations suggest antagonism toward the NRC regulatory scheme and thus may provide support for an inference of retaliatory intent....

When disciplinary action, including termination from employment, is involved, the past practice of the employer in similar situations is relevant to determining whether there has been disparate treatment, which may provide highly probative evidence of retaliatory intent.[8]...

Furthermore, a complete understanding of the testimony of the witnesses, including testimony regarding technical procedures, is necessary for the drawing of pertinent inferences and the resolution of conflicts in that testimony.... In the instant case, a proper understanding of the testimony of the witnesses concerning relevant technical procedures requires at least a superficial understanding of the fields of radiography and welding inspection.

______
[8] A complainant is not required, however, to establish disparate treatment in comparison to other employees, or other whistleblowers, in order to establish retaliatory intent....

[Editor's note: But see Varnadore v. Oak Ridge National Laboratory , 92-CAA 2 and 5, 93-CAA-1 and 3 (ARB June 14, 1996)(ALJ properly terminated line of questioning about supervisor's "brain chemistry)]

X N NRC Notice of Violation not in existence at time of ALJ's decision will not be reviewed by the Secretary

In Norman v. Niagara Mohawk Power Corp., 85-ERA-13 (Sec'y June 1, 1995), the Complainant filed a request for remand and consolidation, which was apparently based primarily on a Notice of Violation to Respondent from the NRC over a year after the ALJ hearing. The Secretary found that although the Notice recited discriminatory treatment of the Complainant, since it was not in existence at the time of the ALJ's decision in the case, it was not a proper subject for his review. 29 C.F.R. § 24.6(b).

[ Editor's note: It is unclear why the Secretary cited 29 C.F.R. § 24.6(b)].

ADMINISTRATIVE NOTICE; NRC INVESTIGATIVE REPORT
[N/E Digest X N]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec y Feb. 14, 1996), the Deputy Secretary took notice of a NRC investigative report concerning the Complainant's complaint, finding that the report was a relevant public document. The Deputy Secretary, however, ultimately disagreed with the NRC's conclusions.

X O Precedential value of ALJ decision

In Hill v. TVA, 87-ERA-23 and 24 (Sec'y Apr. 21, 1994), the Secretary criticized Complainants for citing ALJ recommended decisions in their brief before the Secretary, in a manner that implied that they were final decisions of the Secretary. The Secretary stated that "ALJ recommended decisions in ERA cases are simply that and have no precedential value unless explicitly adopted by the Secretary." Slip op. at 4-5 n.4.

X O Secretary's decisions as binding precedent

The Secretary's decisions in ERA cases are binding precedent under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-706 (1982). Section 3 of the APA, 5 U.S.C. § 552(a)(2), provides that "[e]ach agency in accordance with published rules, shall make available for public inspection and copying --

(A) final opinions . . . as well as orders, made in
the adjudication of cases; . . . .

Opinions and orders of the Secretary of Labor are available for inspection and copying in the Office of Administrative Appeals in accordance with the Department of Labor's regulations. 29 C.F.R. § 70.12(b) (1986). To the extent applicable on the facts and legal questions presented in a given case, the Secretary's decisions are binding on all Department of Labor administrative law judges. See Lockert v. Pullman Power Products Corp., 84-ERA-15 (Aug. 19, 1985).

Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9, 1988).

[see also VIII A 3, in regard to ALJ's obligation to follow Secretary's decisions]

X O Precedential value of ALJ decision

An ALJ's recommended decision has no precedential value of its own. See Hale v. Baldwin Associates, 85-ERA-37 (Sec'y Sept. 29, 1989).

X P Arbitration hearings entitled to consideration

In Lassin v. Michigan State University, 93-ERA-31 (Sec'y June 29, 1995), the Complainant sought the reopening of the record to receive his and his attorney's affidavits attesting to testimony given by employees of the Respondent at an arbitration hearing conducted after the closing of the record in the case. A transcript of the arbitration hearing was not available. The Secretary noted that generally, arbitral proceeding and decisions concerning discrimination are considered by the Secretary in employee protection proceedings, given the strong federal policy favoring arbitration agreements arrived at through collective bargaining procedures. Nonetheless, the Secretary concluded that since what was being offered was simply one party's recounting of the testimony, which is inherently unreliable, the record would not be reopened.

[Nuclear and Environmental Whistleblower Digest X P]
EVIDENCE; ATTORNEY-CLIENT PRIVILEGE IS NOT A PER SE BAR ON THE OFFENSIVE USE OF PRIVILEGED DOCUMENTS IN A WHISTLEBLOWER COMPLAINT

In Willy v. Administrative Review Board, USDOL , No. 04-60347 (6th Cir. Aug. 24, 2005) (case below ARB No. 97-107, 1985-CAA-1), the Complainant was an in-house attorney who wrote a memorandum concluding that a subsidiary of the Respondent was exposed to liability for violating several federal environmental statutes. The memorandum was not well received by several employees of the Respondent. The Complainant was later fired and filed a complaint with DOL alleging that the firing was in retaliation for the memorandum. The Wage and Hour Division found in favor of the Complainant, and a request for ALJ hearing was filed.

During discovery, the Complainant sought production of his memorandum and related documents; the Respondent refused to produce the documents citing attorney-client privilege. Ruling on a motion to compel, the ALJ held that the documents, although confidential, were admissible, citing Doe v. A Corp ., 709 F.2d 1043, 1048 (5th Cir. 1983). Before the Complainant could seek enforcement of the ALJ's order in district court, the ALJ issued a recommended decision finding that the Complainant's internal complaint was not protected activity under Fifth Circuit law. On appeal, the Secretary of Labor reversed the ALJ's finding on protected activity, and concluded that in-house attorneys are not excluded from protection under the ERA. On remand the Respondent continued to refuse to produce the memorandum and related documents, but the ALJ admitted several draft versions in the possession of the Complainant and found that the Complainant had been fired, in part, because of having written the memorandum. The ALJ, however, denied the claim on other grounds. [Editor's note: During the remand proceeding, the ALJ sealed the record in regard to the privileged documents].

On review, the Secretary found in favor of the Complainant, concluding in so finding that the memorandum was admissible evidence. The Secretary remanded for a calculation of back pay. By the time that the ALJ's decision on back pay was issued, the ARB had been delegated the authority to issue whistleblower decisions. The ARB concluded that, under federal law, no exception to the attorney client privilege existed to permit the admission of the memorandum and related documents. The ARB, finding that the without the privileged documents the cause of action failed, dismissed the complaint.

On review, the Fifth Circuit affirmed the ARB's finding that federal common law governs attorney-client privilege in ERA whistleblower complaints, but reversed its conclusion that an attorney may use privileged documents only as a shield and never as a sword. The Fifth Circuit found that the case law only supports a narrower proposition -- that a party cannot simultaneously use confidential information as both a shield and a sword -- that "when a party entitled to claim the attorney-client privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege." Slip op. at 28. The Fifth Circuit went on find that the ARB had misinterpreted several decisions as standing for the proposition that the attorney-client privilege is a per se bar to an attorney's use of privileged information in a claim against his former client or employer. Rather, the Fifth Circuit found controlling its holding in Doe v. A Corp . (the decision cited by the ALJ in ruling on the original discovery dispute).

&bnsp; In sum, neither the current Secretary nor Coastal has directed us to any case that can be stretched to stand for the broad proposition espoused by the ARB, that the attorney-client privilege is a per se bar to retaliation claims under the federal whistleblower statutes, i.e., that the attorney-client privilege mandates exclusion of all documents subject to the privilege. As we observed in Doe, "[a] lawyer . . . does not forfeit his rights [as an employee] simply because to prove them he must utilize confidential information," and we are disinclined to hold that he has. The ARB seriously misinterpreted our and other circuits' case law treating the attorney-client privilege. There are ample opportunities - such as those adverted to in both Doe and Kachmar - to protect privileged information such as that which Coastal now seeks to protect. The ALJ followed these procedures, and we find no error in his doing so.

Slip op. at 34-35 (footnote omitted). The court made it clear that its ruling was limited to the context of a hearing before an ALJ rather than a jury: "Today, we merely hold that no rule or case law imposes a per se ban on the offensive use of documents subject to the attorney-client privilege in an in-house counsel's retaliatory discharge claim against his former employer under the federal whistleblower statutes when the action is before an ALJ." Slip op. at 35.

[Nuclear and Environmental Whistleblower Digest X P]
ADVERSE INFERENCE RULE; UNCALLED WITNESS' TESTIMONY MUST HAVE TENDED TO THROW LIGHT ON THE ISSUES

In Hall v. United States Army Dugway Proving Ground , ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ALJ erred when he drew an adverse inference against the Respondent when it did not call a General as a witness to rebut certain testimony of the Complainant concerning whether the Complainant had been informed that the General had called him a traitor. The Board found that there was testimony by other witnesses rebutting the Complainant's version of the event and that the General could have only testified as to whether he ever called the Complainant a traitor in a place where the person who purportedly told the Complainant of the comment may have overheard the remark. The Board stated that "the adverse inference rule applies when, among other reasons, 'there exists an unexplained failure or refusal of a party . . . to produce evidence that would tend to throw light on the issues.' Gilbert v. Cosco Inc. , 989 F.2d 399, 405-406 (10th Cir. 1993) (internal quotations omitted) and cases cited therein." Slip op. at 28. The Board found that the General's testimony would not have tended to throw light on the conflicting testimony.

[Nuclear and Environmental Whistleblower Digest X P]
PURPOSE OF WHISTLEBLOWER PROTECTION; NO SPECIAL DUTY OF CARE TO EMPLOYEES WITH PRE-EXISTING PROBLEMS

In Hall v. United States Army Dugway Proving Ground , ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ALJ erred when he placed an affirmative burden on the Respondent to accommodate the Complainant's performance problems based on a theory that employers take employees on an "as is" basis and will be responsible for aggravation of exacerbation of pre-existing problems. The Board held that the whistleblower protections only prohibit employers from discriminating against whistleblowers; they do not require such favorable treatment.

[Nuclear and Environmental Whistleblower Digest X P]
ADMISSIBILITY OF EVIDENCE OF REMEDIAL ACTION; ADMISSIBLE WHERE BEING USED FOR IMPEACHMENT

In McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005), the ALJ did not err in receiving into evidence an internal memo detailing remedial actions taken after two engineers had complained of being fired for objecting to a deficient work package where it was being used for impeachment, as permitted by FRE 407.

[Nuclear and Environmental Whistleblower Digest X P]
METHOD OF ANALYSIS; ASSUMING THAT CERTAIN ELEMENTS OF COMPLAINT ESTABLISHED WHEN OTHER ELEMENT IS DISPOSITIVE

In Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB assumed for purposes of weighing the merits of the Complainant's complaint, that a certain action of the Complainant was protected activity and that a certain action of the Respondent was adverse employment action. These assumptions permitted the ARB to avoid extended discussion of those issues and to focus its analysis on the ultimate question of whether the Complainant proved that the Respondent discriminated against him because of his protected activity. The Board found that the Respondent had presented legitimate non-discriminatory reasons for the adverse employment actions and that the Complainant had not shown by a preponderance of the evidence that these reasons were pretext.

To the same effect Jones v. United States Enrichment Corp. , ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004) (ARB assumes, without finding, that the Complainant engaged in protected activity where it decided the case on the ground that the Complainant had failed to establish that his protected activity contributed to the decision to termination his employment).

[Nuclear & Environmental Whistleblower Digest X P]
ANALYSIS; PERMISSIBLE TO ASSUME, WITHOUT DECIDING, ELEMENTS OF THE CAUSE OF ACTION WHERE THE COMPLAINT FAILS ON ANOTHER ELEMENT

In Pafford v. Duke Energy Corp. , ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), the ARB assumed, without deciding, that Complainants had engaged in protected activity. It was not necessary to reach the protected activity element of the case because the Complainants had failed to establish that Respondent's proffered reason for discharging the Complainants was pretext for discrimination.

[Nuclear & Environmental Whistleblower Digest X P]
EVIDENCE; DOCUMENT EXAMINERS; HANDWRITING ANALYSIS; ADMISSIBILITY v. PROBATIVE VALUE

In Overall v. Tennessee Valley Authority , 1999 ERA 25 (ALJ Mar. 16, 2004), several document examiners testified in regard to retaliatory and harassing handwritten and typed notes directed at the Complainant. Complainant's attorney sought a ruling that the Respondent's experts "should be limited in their testimony to observations of similarities and differences between known documents and questioned documents." The ALJ found persuasive authority to the effect that the fact that document examination has not been standardized is not necessarily a bar to the admissibility of such expert testimony questions about reliability go to weight of the evidence, not admissibility. The ALJ, however, found that the expert handwriting and typewriter testimony was "inconclusive and does not show that [the Complainant] or a TVA employee or a TVA supervisor authored the harassing notes on record."

[Nuclear & Environmental Whistleblower Digest X P]
ADVERSE INFERENCE BASED ON SPOLIATION OF EVIDENCE; DESTRUCTION OF DOCUMENTS UNDER FEDERAL RECORDS RETENTION SCHEDULE

In Pickett v. Tennessee Valley Authority , ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003), Complainant alleged that Respondent's failure to provide documents he had requested under the FOIA and Privacy Act amounted to the spoliation of evidence, and entitled him to an inference that the evidence was unfavorable to Respondent. The ARB held that the FOIA and Privacy Act issues fell beyond the authority of ALJs in environmental whistleblower cases and that Complainant failed to show that Respondent had engaged in improper conduct in this connection. Respondent had advised that it destroyed certain documents in accordance with its records retention schedules. This destruction was four years before Complainant filed suit, and Complainant did not show that Respondent lacked a routine document destruction policy or that the documents were not destroyed and were being withheld in connection with this litigation. The ARB thus agreed with the ALJ that Complainant was not entitled to adverse inferences or sanctions under 29 C.F.R. Part 18 as a consequence of his failure to obtain information he sought under the FOIA and Privacy Acts.

[Nuclear and Environmental Digest X.P.]
SUMMARY REVERSAL OF ALJ; HEAVY BURDEN ON PROPONENT OF MOTION

The ARB denied Complainant's motion for summary reversal of the ALJ's recommended decision in Mourfield v. Plaas , ARB Nos. 00-055 and 00-056, ALJ No. 1999-CAA-13 (ARB Nov. 24, 2000). The Board wrote: "A party seeking summary disposition has a heavy burden of establishing that the merits of his or her case are so self-evident that further briefing and argument of the issues presented would not benefit the adjudicator and that the merits of the case are so patent that expedited action is warranted. Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297-298 (D.C. Cir. 1987)."

To the same effect: Pickett v. Tennessee Valley Authority , ARB No. 00-076, ALJ Nos. 1999-CAA-25 and 2000-CAA-9 (ARB Dec. 6, 2000).

[Nuclear & Environmental Digest X P]
ADVERSE INFERENCE; NO INFERENCE DRAWN BY OSHA'S LACK OF OPPOSITION WHERE OSHA WAS NEVER PARTY

In Varnadore v. Oak Ridge National Laboratory , ARB No. 99-121, ALJ Nos. 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1 (ARB June 9, 2000), the ARB denied Complainant's motion to draw the adverse inference that OSHA and the Office of the Solicitor did not oppose his motion to reopen where OSHA was never a party to the action.

[Nuclear & Environmental Digest X P]
SIMILARITY BETWEEN BRIEFS OF CO-RESPONDENTS; COMPLAINANTS' REQUEST FOR ADVERSE INFERENCE

In Cox v. Lockheed Martin Energy Systems, Inc. , 1997-ERA-17 (ARB Apr. 21, 1999), Complainants filed a motion requesting that the ARB draw adverse inferences because a motion filed by a Federal respondent (DOE) was similar to a motion filed by a private Respondent (Lockheed Martin). The ARB found the motion to be frivolous, concluding that similarities in pleadings in cases with multiple respondents is not ususal or surprising. Thus, the ARB denied Complainants' motion.

[N/E Digest X P]
PROOF OF MAILING; COMPLAINANT'S TESTIMONY SUFFICIENT BECAUSE IT IS REASONABLE TO PRESUME THAT MAIL GETS LOST

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB ay 28, 1997), Complainant testified that he mailed a letter to a state agency and that the agency had not responded; that letter was found by the Board to be was sufficient to raise a cognizable complaint under the employee protection provision of the FWPCA. Respondent answered that Complainant had provided no proof that the letter was actually mailed or received. The Board, however, found that "[Complainant's testimony was] persuasive when considering that it is a reasonable presumption that mail may occasionally be lost or misdelivered, distributed to the wrong office or section of a governmental agency, lost within the agency, or otherwise misplaced, forgotten or unprocessed." Slip op. at 5 n.5 (citations omitted).

[N/E Digest X P]
ADVERSE INFERENCES RELATING TO WITNESSES NOT CALLED

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB ay 28, 1997), the Board did not question Complainant's testimony that he made internal complaints to several managers because Respondent could have called these managers to rebut the assertion, but did not.

Complainant had wanted application of an inference that all testimony of witnesses not called by Respondent would have been adverse to Respondent. The Board noted that it did draw an adverse inference in regard to the internal complaint issue, but that Respondent's failure to call various personnel to testify did not oblige the ALJ to resolve all issues with respect to which they may have testified against Respondent. The Board quoted Rockingham achine-Lunex Co. v. NLRB , 665 F.2d 303, 305 (8th Cir. 1981): "The rule permits an adverse inference to be drawn; it does not create a conclusive presumption against the party failing to call the witness."

SCOPE OF REVIEW; APPROPRIATE TO FOCUS ON DISPOSITIVE ISSUE
[N/E Digest X P]

Where there is overwhelming evidence in support of the respondent's legitimate, nondiscriminatory reason for terminating the employment of the complainant, engaging in a detailed analysis of the other specific issues in the case is not necessary. See Straub v. Arizona Public Service Co. , 94-ERA-37, slip op. at 9-10 (Sec'y Apr. 15, 1996).

ARBITRATION DECISIONS; CONSIDERATION IN ERA PROCEEDINGS
[N/E Digest X P]

In Straub v. Arizona Public Service Co. , 94- ERA-37 (Sec'y Apr. 15, 1996), the Secretary extended to the ERA the ruling of Roadway Express v. Brock , 830 F.2d 179, 181 (11th Cir. 1987), an STAA case, that pertinent arbitration decisions must be considered during the adjudication of a whistleblower complaint, with the probative weight to be accorded such decisions dependent on the adequacy provided the employee's rights in the arbitral proceeding.

EVIDENCE; FAILURE TO CALL WITNESSES; ADVERSE INFERENCE
[N/E Digest X P]

In Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), the Secretary declined to draw unfavorable inferences solely because the Respondent did not call witnesses. The Secretary observed, however, that a failure to call witnesses places a respondent at risk that the complainant's uncontradicted evidence will be found credible.

WEIGHING OF EVIDENCE; BENEFIT OF DOUBT TO COMPLAINANT
[N/E Digest X P]

It is error for the ALJ to view the evidence in the light most favorable to the complainant after there has been a full hearing with presentation of evidence by all parties. At that point, the evidence should be viewed neutrally. In contrast, it is proper to view the evidence in favor of the non-moving party on a motion for summary decision. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996).