USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XI A -- BURDEN OF PROOF AND PRODUCTION, PRIMA FACIE CASE

USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION A -- ELEMENTS OF A WHISTLEBLOWER COMPLAINT

[Last updated June 29, 2015]

XI. Burden of proof and production [Editor's note: Some casenotes allocated to this division may include decisions in which the question was whether the complainant carried his or her burden on the element of the complaint rather than whether he established a prima facie case]

A. Elements

1. Generally

2. Establishing causation element

a. Generally

b. Circumstantial evidence

i. Generally

ii. Proximate timing of adverse action

iii. Other circumstances

c. Respondent's awareness of protected activity

d. Direct evidence of discrimination

3. Existence of adverse action

[Nuclear & Environmental Whistleblower Digest XI]
ERA BURDEN OF PROOF; CIRCUMSTANTIAL EVIDENCE CASE REQUIRES WEIGHING OF ALL RELEVANT EVIDENCE

In Bobreski v. J. Givoo Consultants, Inc. , ARB No. 13-001, ALJ No. 2008-ERA-3 (ARB Aug. 29, 2014), the ARB reiterated the burden of proof and elements of an ERA Section 5851 whistleblower case:

Subsection 5851(b)(3)(C) provides that "[t]he Secretary may determine that a violation of subsection (a) of this section has occurred only if the complainant has demonstrated that any [ERA Protected Activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." This provision creates the "violation" clause of the ERA whistleblower provisions. The plain meaning of "contributing factor" focuses on whether protected activity did or did not, in fact, contribute at all to an employer's unfavorable employment action. Congress expressly ensured that the causation standard was not defined as meaning an essential ("but for") or significant ("motivating") factor as in other discrimination statutes but rather a lower causation standard of "contributory factor." To prove that a covered employer "violated" the ERA whistleblower protection law, a complainant must establish that: (1) he engaged in activity the ERA protects; (2) the employer subjected him to an unfavorable personnel action; and (3) the protected activity was in fact a "contributing factor in the unfavorable personnel action." 42 U.S.C.A. §; 5851(b)(3)(C). If a complainant proves that a violation occurred, then the focus turns to the relief that should be ordered.

The affirmative defense clause of the ERA whistleblower provisions, 42 U.S.C.A. §; 5851(b)(3)(D), prevents the Secretary from ordering relief for a proven whistleblower violation "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (the same decision defense). The higher standard of proof makes sense where the complainant proved, in fact, that the employer violated the ERA whistleblower provision. As the Eleventh Circuit observed in 1997, Congress deliberately sought to make it tough for violators to escape from paying for their unlawful whistleblower retaliation. But this high standard applies only if the complainant first convinces the ALJ by a preponderance of all the relevant evidence presented that protected activity actually contributed to the employer's unfavorable employment action.

USDOL/OALJ Reporter at 15-16 (footnotes omitted). The Board also stated:

[T]he complainant's burden on the causation element involves a single ultimate issue after an evidentiary hearing in ERA whistleblower cases: whether the complainant proved that his protected activity was a "contributory factor" in the employer's unfavorable employment decision. To answer that question, where the complainant presents his case by circumstantial evidence, ... the ALJ must consider "all" the evidence "as a whole" to determine if the protected activity did or did not "contribute." By "all" of the evidence, we mean all the evidence that is relevant to the question of causation. This requires collecting the complainant's evidence on causation, assessing the weight of each piece, and then determining its collective weight. The same must be done with all of the employer's evidence offered to rebut the complainant's claim of contributory factor. For the complainant to prove contributory factor before the ALJ, all of his circumstantial evidence weighed together against the defendant's countervailing evidence must not only permit the conclusion, but also convince the ALJ, that his protected activity did in fact contribute to the unfavorable personnel action. Because contributory factor permits unlawful retaliatory reasons to co-exist with lawful reasons, a complainant does not need to prove that lawful reasons were pretext. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence. As the United States Supreme Court has stated, "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."

USDOL/OALJ Reporter at 16-17 (footnotes omitted). One member of the ARB concurred, but stated that both the ALJ and the majority erred by weighing the Respondent's rebuttal evidence against the Complainant's causation evidence at the first "contributing factor" stage of the ERA whistleblower framework. The concurring member wrote:. "Assuming the complainant's evidence is sufficient to sustain proof of "contributing factor" causation; the respondent's non-retaliatory reason for its action may not be weighed against the complainant's evidence of causation but instead must be weighed at the second affirmative defense stage under the higher clear and convincing evidence standard." Id. at 33.

In Bobreski , the ARB found that the ALJ "failed to consider the evidence as a whole and collectively weigh all of [the Complainant's] evidence against all of. [the Respondent's] rebuttal evidence to determine the question of causation." Id. at 18. The ARB found that the both the original ALJ and a second ALJ assigned the case on remand erroneously "fragmented the causation question into many subparts and required [the Complainant] to prove each of the subparts by a preponderance of the evidence, and arguably required direct evidence." Id. In a detailed decision, the ARB found that the Respondent presented weak rebuttal evidence while the Complainant presented strong circumstantial evidence, and that a remand on the question of contributory factor was unnecessary and futile because the evidence led to one conclusion: that the Respondent refused to hire the Complainant because of his whistleblower activity. The ARB also found that "the overwhelming evidence of contributory factor, and lack of any other stated reasons for rejecting Bobreski eliminates Givoo's ability to show by clear and convincing evidence that it would have made the same decision in the absence of protected activity...." Id. at 32.

[Nuclear & Environmental Digest XI]
BURDEN OF PROOF AND STANDARD OF REVIEW

In Martin v. The Dept. of the Army , ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), the ARB analyzed the general burden of proof and administrative standard of review in whistleblower cases. The Board wrote:

    The regulations governing adjudications by the Department of Labor's Office of Administrative Law Judges provide that, "[u]nless otherwise required by statute or regulations, hearings shall be conducted in conformance with the Administrative Procedure Act, 5 U.S.C. 554." 29 C.F.R. §;18.26. As the SDWA and the regulations implementing it are silent concerning the burden of proof to be applied in whistleblower cases, the burden of proof required by the APA governs this case.

    The APA standard of proof "is the traditional preponderance-of-the-evidence standard." Steadman v. SEC , 450 U.S. 91, 102 (1981) (construing the provision at Section 556(d) that "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof"); OFCCP v. Greenwich Collieries , 512 U.S. 267 (1994) (reaffirming Steadman and repudiating assertion in NLRB v. Transportation Management Corp. , 462 U.S. 393 (1983), that the proponent of the agency order has the burden of production and the respondent has the burden of persuasion). Evidence meets the "preponderance of the evidence" standard when it is more likely than not that a certain proposition is true. Fischl v. Armitage , 128 F.3d 50, 55 (2d Cir. 1997). This is the standard which is to be applied by the ALJ in his initial hearing.

    In reviewing an ALJ recommended decision under the employee protection provision of the SDWA, this Board is also subject to the APA preponderance of the evidence standard. Ewald v. Commonwealth of Virginia , Case No. 89-SDW-1, Sec. Dec. and Rem. Ord., Apr. 20, 1995, slip op. at 11 (to prevail on complaint under environmental whistleblower provisions, complainant needs to prove proposition by a preponderance of the evidence). The Board is not bound by the ALJ recommended decision, but rather retains complete freedom of decision:

In making its decision, whether following an initial or recommended decision, the agency is in no way bound by the decision of its subordinate officer; it retains complete freedom of decision, as though it had heard the evidence itself. This follows from the fact that a recommended decision is advisory in nature. . . . Similarly, the third sentence of section [557(b) of the APA] provides that "On appeal from or review of the initial decisions of such [hearing] officers, the agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it would have in making the initial decision."

Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII §;8, pp. 83-84 (1947); see also Universal Camera Corp. v. NLRB , 340 U.S. 474 (1951) (same).

To the same effect: Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999).

[Nuclear and Environmental Whistleblower Digest XI A]
BURDEN OF PRODUCTION AND PROOF IS DIFFERENT IN ENVIRONMENTAL WHISTLEBLOWER CASES AS OPPOSED TO ERA WHISTLEBLOWER CASES WHERE THE EMPLOYER'S BURDEN IN HIGHER IN SOME RESPECTS

In Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB summarized the respective burdens of production and proof under the whistleblower provisions of the environmental statutes, as opposed to the whistleblower provision of the ERA :

To establish a prima facie case of unlawful discrimination under the environmental whistleblower statutes, a complainant needs only to present evidence sufficient to raise an inference, a rebuttable presumption, of discrimination. As the Secretary and the Board have noted, a preponderance of the evidence is not required. See Williams v. Baltimore City Pub. Schools Sys. , ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 1 n. 7 (ARB May 30, 2003). A complainant meets this burden by initially showing that the employer is subject to the applicable whistleblower statutes, that the complainant engaged in protected activity under the statute of which the employer was aware, that the complainant suffered adverse employment action and that a nexus existed between the protected activity and the adverse action. See Jenkins , slip op. at 16-17; Bechtel Constr. Co. v. Sec'y of Labor , 50 F.3d 926, 933-934 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). Contrary to the ALJ's characterization, once a complainant meets his initial burden of establishing a prima facie case, the burden then shifts to the employer to simply produce evidence or articulate that it took adverse action for a legitimate, nondiscriminatory reason (a burden of production, as opposed to a burden of proof). When the respondent produces evidence that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, the rebuttable presumption created by the complainant's prima facie showing "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). At that point, the inference of discrimination disappears, leaving the complainant to prove intentional discrimination by a preponderance of the evidence. Jenkins , slip op. at 18. Cf. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). Thus, after a whistleblower case has been fully tried on the merits, the ALJ does not determine whether a prima facie showing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity. Williams , slip op. at 1 n. 7; Jenkins , slip op. at 16-17.

If the complainant proves by a preponderance of the evidence that a retaliatory or discriminatory motive played at least some role in the respondent's decision to take an adverse action, only then does the burden of proof shift to the respondent employer to prove an affirmative defense and show that the complainant employee would have been fired even if the employee had not engaged in protected activity. Lockert , 867 F.2d at 519 n. 2. ...[W]hile Congress has specifically placed a higher burden on the employer in an ERA case in such circumstances, i.e., to demonstrate by "clear and convincing" evidence that it would have nevertheless taken the same action, see 42 U.S.C.A. §; 5851(b)(3)(D), it has not done so with respect to employers under the CERCLA, TSCA or CAA. Under these environmental whistleblower statutes, the employer may meet that burden by only a preponderance of the evidence. See Cox v. Lockheed Martin Energy Sys., Inc. , ARB No. 99-040, ALJ No. 97-ERA-17, slip op. at 4 n.7 (ARB Mar. 30, 2001).

[Nuclear & Environmental Whistleblower Digest XI]
STANDARD OF PROOF IN POST 1992 AMENDMENT ERA CASES

In Bourland v. Burns International Security Services , ARB No. 99 124, ALJ No. 1998 ERA 32 (ARB Apr. 30, 2002), Complainant argued on appeal to the ARB that the ALJ's use of the McDonnell Douglas v. Green , 411 U.S. 792 (1973) test in regard to a post 1992 ERA whistleblower case was in error and had the effect of allowing Respondent to articulate a legitimate reason for the suspension, thereby wiping out inferences to which Complainant was entitled, and thus preventing Respondent from having to bear its clear and convincing burden under 42 U.S.C.A. §; 5851(b)(3)(D). The ARB found no authority supporting this argument, and rejected it. The ARB, however, indicated that the standard of proof for post 1992 amendment ERA whistleblower cases is as follows:

The ERA requires a complainant to "demonstrate" that his protected behavior was a contributing factor in the unfavorable personnel action that followed. 42 U.S.C.A. §; 5851 (b)(3)(C). "Demonstrate," in this context, means to prove by a preponderance of the evidence. Dysert v. Florida Power Corp. , 93 ERA 21, slip op. at 3 (Sec'y Aug.7, 1995), aff'd sub nom. Dysert v. U. S. Secretary of Labor , 105 F. 3d 607, 609 10 (11th Cir. 1997); Trimmer v. U. S. Dep't of Labor , 174 F.3d 1098, 1101 02 (10th Cir. 1999); Stone & Webster Engineering Corp. v. Herman , 115 F. 3d 1568, 1572 (11th Cir. 1997).

Since the Complainant did not meet this statutory requirement, he could not prevail.

[Nuclear & Environmental Digest XI]
ELEMENTS OF ERA WHISTLEBLOWER PROTECTION CLAIM

In Paynes v. Gulf States Utilities Co. , ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ARB set out a complainant's burden of proof in an ERA whistleblower protection case: Once the case has been fully tried on the merits, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Thus, the adjudicator must determine whether the complainant has proven, by a preponderance of the evidence, that the complainant engaged in protected activity under the ERA, that the respondent took adverse action against the complainant, and that the complainant's ERA-protected activity was a contributing factor in the adverse action that was taken.

The ARB noted that the ALJ erred in placing the burden on the Respondent to prove that the complainant was subjected to adverse action for legitimate, non-discriminatory reasons.

[Nuclear & Environmental Digest XI]
RESPONDENT DOES NOT CARRY BURDEN OF PROOF

Although finding that the ALJ's decision was thorough and well-reasoned, the ARB in Agbe v. Texas Southern University , ARB No. 98- 072, ALJ No. 1997-ERA-13 (ARB July 27, 1999), corrected one isolated misstatement by the ALJ of the burdens of proof (the ALJ had correctly stated the burdens earlier in the decision). Specifically, the ALJ wrote that "Respondent has not met its burden to show that Complainant's internal safety complaints did not motivate Dr. Milton to withdraw the offer of employment to Complainant." The ARB held that "Respondent does not carry the burden of proving a negative proposition, that it was not motivated by Complainant's protected activities when it took the adverse action. Throughout, Complainant has the burden of proving that the employer was motivated, at least in part, by Complainant's protected activities. Zinn v. University of Missouri , Case Nos. 93-ERA-34,36, Sec'y. Dec. Jan. 18, 1996, slip op. at 7."

The ARB held that the ALJ's misstatement did not affect the outcome of the recommended decision, and adopted the ALJ's decision in all other respects.

[N/E Digest XI]
FRAMEWORK OF ERA, 42 U.S.C. 5851

In Stone & Webster Engineering Corp. v. Herman , 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit sought to dispel some seeming perplexity of 42 U.S.C. §; 5851, and the extent to which it draws from the general law of employment discrimination. The court wrote:

In 1992, Congress amended §; 5851 to codify a particular framework regarding burdens of proof where no statutory guidance existed before. Energy Policy Act of 1992, P.L. 102-486, §; 2902(d); see also Mackowiak v. University Nuclear Systems, Inc. , 735 F.2d 1159, 1164 (9th Cir.1984) (upholding similar framework). Under the statutory framework, a complainant must first pass a gatekeeper test before an inquiry may commence. The Secretary may investigate only if the complainant succeeds in making a "prima facie showing" that retaliation for protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C. §; 5851(b)(3)(A). Then the investigation must go forward, unless the employer "demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of such behavior." 42 U.S.C. §; 5851(b)(3)(B).

Section 5851's reference to a "prima facie showing" has bred some confusion, chiefly because the phrase evokes the sprawling body of general employment discrimination law. See, e.g., Price Waterhouse v. Hopkins , 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); Mt. Healthy City School Dist. Bd. of Ed. v. Doyle , 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The Secretary of Labor and S&W have quarreled over how these cases and their innumerable progeny affect Section 5851's evidentiary burdens. But Section 5851 is clear and supplies its own free-standing evidentiary framework. After a complainant has cleared the prima facie gatekeeper test--and assuming she has not been knocked out by a preemptory "clear and convincing" response from the employer--the Secretary is to investigate whether the complainant's behavior actually was "a contributing factor in the unfavorable personnel action." 42 U.S.C. §; 5851(b)(3)(C). The burden to persuade the Secretary falls upon the complainant, and she must do so by a preponderance of the evidence. Dysert v. Sec. of Labor , 105 F.3d 607, 610 (11th Cir.1997). If the complainant succeeds, the employer has a second chance to offer "clear and convincing evidence" that it would have done the same thing anyway, i.e. , "in the absence of such behavior." §; 5851(b)(3)(D).

For employers, this is a tough standard, and not by accident. Congress appears to have intended that companies in the nuclear industry face a difficult time defending themselves. "Recent accounts of whistleblower harassment at both NRC licensee ... and [Department of Energy] nuclear facilities ... suggest that whistleblower harassment and retaliation remain all too common in parts of the nuclear industry." H. Rep. No. 102-474(VIII), at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 2282, 2297. "These reforms," the House Report continues, "are intended to address those remaining pockets of resistance." Id .

[Nuclear & Environmental Digest XI]
BURDEN OF PROOF IN ERA CASE

Excerpt from Trimmer v. U.S. Dept. of Labor , No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5):

If . . . the case proceeds to a hearing before the Secretary, the complainant must prove the same elements as in the prima facie case, but this time must prove by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision. See §; 5851(b)(3)(C); see also Dysert v. Secretary of Labor , 105 F.3d 607, 609-10 (11th Cir. 1997) (holding that Secretary's construction of §; 5851(b)(3)(C), making complainant's burden preponderance of evidence, was reasonable). Only if the complainant meets his burden does the burden then shift to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. See §; 5851(b)(3)(D).

[Nuclear & Environmental Digest XI]
BURDENS OF PROOF; PRIMA FACIE CASE NEED NOT BE ESTABLISHED BY PREPONDERANCE OF THE EVIDENCE; HOWEVER, ONCE CASE FULLY TRIED ON THE MERITS, PRIMA FACIE CASE ANALYSIS IS ANALYTICALLY UNIMPORTANT

In Adornetto v. Perry Nuclear Power Plant , 1997-ERA-16 (ARB Mar. 31, 1999), the ARB held that the ALJ erred in stating that the Complainant must establish a prima facie case by a preponderance of the evidence, and that in response to the prima facie case, the Respondent must establish by clear and convincing evidence that it had a legitimate reason for its action.

Rather, "there is no requirement that a complainant establish a prima facie case by a preponderance of the evidence; a complainant only is required to present evidence sufficient to raise an inference of discriminatory motivation to establish a prima facie case. Furthermore, Respondent only has the burden at this point of articulating a legitimate, nondiscriminatory reason for the adverse action. Complainant must prove by a preponderance of the evidence that complainant's protected conduct was a contributing factor in the adverse action taken. If complainant carries that burden, Respondent can avoid liability by establishing by clear and convincing evidence that it would have taken the same action even in the absence of protected activity. 42 U.S.C. §; 5851(b)(3)(C) and (D)." Slip op. at 4.

Further, once a case has been tried fully on the merits, it no longer serves any analytical purpose to address and resolve the question of whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Carroll v. Bechtel Power Corp. , 1991-ERA- 46 slip op. at 9-11 (Sec'y, Feb. 15, 1995), aff'd Carroll v. U.S. Dept. of Labor , 78 F.3d 352 (8th Cir. 1996).

XI. Burden of proof, general statement

Under the burdens of proof and production in whistleblower proceedings, the complainant first must make a prima facie showing that protected activity motivated the employer's decision to take adverse employment action. The employer may rebut this showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The employer, however, bears only a burden of production of rebuttal evidence; the ultimate burden of persuasion of the existence of retaliatory discrimination rests with the complainant. Hence, the complainant must establish that the reason proffered by the employer is not the true reason. The complainant may persuade directly by showing that the unlawful reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is not credible.

Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992); Larry v. Detroit Edison Co., 86-ERA- 32 (Sec'y June 28, 1991); Dartey v. Zack Co., 80- ERA-2 (Sec'y Apr. 25, 1983).

ELEMENTS OF WHISTLEBLOWER PROTECTION CASE
[N/E Digest XI]

In order to prevail in a whistleblower protection case based upon circumstantial evidence of retaliatory intent, it is necessary to prove that:

the complainant was an employee of a covered employer;
the complainant engaged in protected activity;
the complainant thereafter was subjected to adverse action regarding his or her employment;
the Respondent knew of the protected activity when it took the adverse action; and
the protected activity was the reason for the adverse action.

See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); Carroll v. Bechtel Power Corp., Case No. 91-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

Saporito v. Florida Power & Light Co. , 94-ERA-35 (ARB July 19, 1996).

BURDENS OF PROOF AND PRODUCTION; ERA AMENDMENTS
[N/E Digest XI]

In Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), appeal filed, No. 95-1729 (8th Cir. Mar. 27, 1995), the Secretary provided a restatement and clarification of the burdens of proof and production in whistleblower cases. In Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary provides a recent, and thorough restatement of those burdens, which varies in some respects form the Carroll restatement. The following is an excerpt of the Secretary's restatement:

Under the burdens of proof and production in "whistleblower" proceedings, 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, by establishing that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. ... Additionally, a complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. ... If a complainant succeeds in establishing the foregoing, the respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action. ...
The complainant bears the ultimate burden of persuading that the respondent's proffered reasons are not the true basis for the adverse action, but are a pretext for discrimination. ... The complainant bears the burden of establishing by a preponderance of the evidence that the adverse action was in retaliation for protected activity. . . . Pursuant to Section 211(b)(3) of the ERA, however, if it has been established that the protected activity contributed to the adverse action, the employer must demonstrate by "clear and convincing evidence" that it would have taken the adverse action in the absence of the protected activity. . . .

Slip op. at 6-8 (citations omitted).

Editor's note: Two significant additions since the Carroll restatement are (1) reference to the "reliance on circumstantial evidence" limitation on the use of a prima facie case analysis, and (2) addition of special burdens in ERA cases based on the 1992 amendments.

XI. Burden of proof, general statement

See Carroll v. Bechtel Power Corp., 91-ERA-46 @ 4-7 (Sec'y Feb. 15, 1995), for the Secretary's restatement of the standard legal principles to be applied in nuclear whistleblower proceedings.

[Editor's note: Carroll has become a standard citation in Secretarial decisions, and appears to be considered by the Secretary as an important statement of the legal framework.]

XI. General statement of burdens of proof & production

To establish a prima facie case of a discriminatory discharge, the complainant must show that he engaged in protected activity of which the respondent was aware and that the respondent took adverse action against him. The complainant must also present evidence sufficient to at least raise the inference that protected activity was the likely motive for the adverse action. Jain v. Sacramento Mun. Util. Dist., 90-ERA-1 (Sec'y Apr. 2, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-8. If the complainant establishes a prima facie case, the respondent may rebut by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Id. at 8.

If there is rebuttal, the complainant, to prevail, must demonstrate that the proffered reason for the adverse action is not the real reason by showing that discriminatory reasons more likely motivated the action or that the proffered explanation is unworthy of credence. Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Dartey, slip op. at 8. If the trier of fact decides there are dual motives, the respondent cannot prevail unless it shows it would have reached the same decision in the absence of protected conduct. Id. at 9.

Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), slip op. at 6.

XI. Overview; Dartey

In Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9, the Secretary set out the general principles which he intended to apply in retaliatory adverse action cases arising under 29 C.F.R. Part 24 and the statutes enumerated there. The two leading cases used by the Secretary to establish the framework for Part 24 whistleblower cases were Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Title VII case) and Mt. Healthy School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977) (Constitutional adverse action case). He noted that Mt. Healthy had been applied to section 5851 cases by the Second Circuit. Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982); Jaenisch v. United States Dep't of Labor, __ F.2d __ (No.81-4149, 2d Cir. June 28, 1982). Cf. DeFord v. Secretary of Labor, __ F.2d __ (Nos. 81-3228 etc., 6th Cir. Feb. 10, 1983).

Under Burdine, the employee must initially present a prima facie case consisting of a showing that he engaged in protected conduct, that the employer was aware of that conduct and that the employer took some adverse action against him. In addition, as part of his prima facie case, "the plaintiff must present evidence sufficient to raise the inference that . . . protected activity was the likely reason for the adverse action." Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982) (Title VII case).

If the employee establishes a prima facie case, the employer has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscrimatory reasons. Significantly, the employer bears only a burden of producing evidence at this point; the ultimate burden of persuasion of the existence of intentional discrimination rests with the employee. Burdine, 450 U.S. at 254-55.

If the employer successfully rebuts the employee's prima facie case, the employee still has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision . . .. [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256 (citation omitted.)

The trier of fact may then conclude that the employer's proffered reason for its conduct is a pretext and rule that the employee has proved actionable retaliation for protected activity. Conversely, the trier of fact may conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct and rule that the employee has failed to establish his case by a preponderance of the evidence. Id. at 254-65. Finally, the trier of fact may decide that the employer was motivated by both prohibited and legitimate reasons, i.e., that the employer had "dual motives."

Under Mt. Healthy, if the trier of fact reaches the latter conclusion, that the employee has proven by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action, the employer, in order to avoid liability, has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287; Consolidated Edison, 673 F.2d at 63.

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.

XI. Adoption of Burdine in ERA cases

The Secretary of Labor has adopted the Supreme Court's prescription for the allocation of burdens of proof and production set out in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), and applied it to whistleblower cases under the ERA. See Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9.

Rogers v. Multi-Amp Corp., 85-ERA-16 (Sec'y Dec. 18, 1992).

XI. Whether analysis of prima facie case is necessary when it is clear that complainant cannot meet his or her ultimate burden of proof

In Hu v. Public Service Electric & Gas Co., 93- ERA-38 (ALJ Dec. 8, 1993), the ALJ, citing St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747 (1993), declined to address the issue of whether Complainant had established a prima facie case of discrimination because he was "convinced that [Complainant] had not sustained his ultimate burden of proving, by a preponderance of the evidence, that Respondent intentionally discriminated against him because he engaged in protected activities." Slip op. at 9. Specifically, the ALJ found that Respondent had "produced convincing evidence that all the adverse employment actions that [Complainant] complains of were for legitimate business reasons[,]" and that there is "no evidence of pretext or dual motive" and that Complainant had "not sustained his ultimate burden of proving that his allegedly protected activity motivated, in whole or in part, [Respondent's] decision to any of the adverse employment actions he experienced." Slip op. at 9 and 12.
XI. Whether analysis of prima facie case is necessary when it is clear that complainant cannot meet his or her ultimate burden of proof

XI Burden of production for prima facie case

To establish a prima facie case, the complainant need only present evidence sufficient to prevail until contradicted and overcome by other evidence. Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar. 16, 1995) (citing Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at 11).

XI.A.1. Title VII burdens of proof applicable to ERA cases

See Hedden v. Conam Inspection, 82-ERA-3 (Sec'y June 30, 1982), for a pre- Dartey ERA case holding that the burdens of proof set forth in Title VII cases are applicable.

[Nuclear & Environmental Whistleblower Digest XI A 1]
EVIDENTIARY FRAMEWORK FOR ERA WHISTEBLOWER CASES

In Kester v. Carolina Power & Light Co. , ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003), the ARB determined to clarify the overall evidentiary framework for ERA whistleblower cases because of continuing confusion. The Board wrote:

    Prior to the 1992 amendments, the Act itself did not provide guidance as to the parties' burdens of proof. An ERA complainant, to prevail, was required to prove by a preponderance of the evidence that his protected activity was a "motivating factor" in the employer's unfavorable personnel decision. If the complainant proved his case, the employer could avoid liability if it could show, also by a preponderance of the evidence, that it would have reached the same decision even absent the protected conduct.

    In 1992 Congress amended section 5851 of the Act. Now, unless an ERA complainant, before the hearing, makes a "prima facie showing" that his protected activity was a "contributing factor in the unfavorable personnel action alleged in the complaint," the Secretary of Labor will not investigate and must dismiss his complaint. Should the complainant make this initial "prima facie showing," the Secretary investigates the claim unless the employer "demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of such behavior." When the complainant reaches the hearing stage of the ERA litigation process, however, he must "demonstrate," that is, prove by a preponderance of the evidence, that his protected activity was a "contributing factor" in the employer's decision. Even then, the Secretary may not grant relief if the employer demonstrates "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence" of protected activity.

    Therefore, since this case has been tried on the merits, the relevant inquiry before us is whether Kester has successfully met his burden of proof that CP&L discriminated. That burden is to prove by a preponderance of evidence that he engaged in protected activity under the ERA, that CP&L knew about this activity and took adverse action against him, and that his protected activity was a contributing factor in the adverse action CP&L took. Then, if Kester meets this burden, we will proceed to determine whether CP&L has demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. CP&L's burden of proof is in the nature of an affirmative defense and arises only if Kester has proven that CP&L fired him in part because of his protected activity. Examining whether CP&L meets this burden of proof is typically referred to as "dual motive" analysis. If Kester does not prove that CP&L fired him in part because of his protected activity, neither the ALJ nor we have reason to engage in dual motive analysis.

Slip op. at 5 8 (footnotes omitted). In extensive footnotes, the Board endeavored to correct some misinterpretations of the evidentiary framework it had detected in various ALJ opinions. The Board clarified that the 1992 amendments to the whistleblower provision of the ERA created a framework "distinct" from that of Title VII insofar as the amendments created a gatekeeper function that prevents investigation by the Secretary if, prior to the hearing, the complaint fails to make a prima facie showing that his or her protected activity was a contributing factor in the unfavorable personnel action alleged. This distinction does not mean that Title VII methodology may not be applied, when appropriate, in DOL ERA whistleblower adjudications. Rather, because most ERA complaints are grounded in circumstantial evidence of retaliatory intent, Title VII analytical frameworks are routinely applied by the ARB and reviewing courts B although an ALJ is discouraged from the unnecessary discussion of whether a prima facie case has been established once the case has been fully tried.

The Board also clarified that the Title VII burden shifting framework is applied in circumstantial evidence cases, but is not needed in direct evidence cases. The Board cautioned against confusing a litigant's "burden of proof" with the "evidentiary framework" employed to evaluate proof of discrimination. Observing that "burden of proof" has been used indiscriminately in court opinions, correctly used "the term means the necessity of finally establishing the existence of a fact or set of facts by evidence which meets a particular 'standard of proof,' e.g., preponderance, clear or convincing, beyond a reasonable doubt." Slip op. at n.17 (citation omitted; emphasis as in original).

Finally, the Board clarified that a ERA complainant is not required to produce "direct" evidence in order to trigger the dual motive analysis. Rather, "[t]he Act requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial, that the protected activity contributed to the employer's decision." Slip op. at n.17 (citation omitted).

[Nuclear & Environmental Whistleblower Digest XI A]
PRIMA FACIE CASE ANALYSIS; NOT ERROR TO PROCEED DIRECTLY TO ULTIMATE QUESTION OF LIABILITY

In Hobby v. USDOL , No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), Respondent on appeal argued that the Secretary committed reversible error by failing to find that Complainant established a prima faci e case. Essentially, in the Secretary's decision, the Secretary skipped over consideration of the elements of a prima facie case, and went straight to the ultimate question of whether Respondent retaliated against Complainant for engaging in protected activity. The Eleventh Circuit characterized Respondent's appeal as a complaint that the Secretary failed to "belabor" the question of a whether Complainant established a prima facie case. The court held that "it is not error to omit a formalistic analysis when the ultimate conclusion implicitly includes a finding of an inference as to that same conclusion" and cited United States Postal Service v. Aikens , 460 U.S. 711, 103 S.Ct. 1478 (1983) for the proposition that the prima facie case analysis "was never intended to be rigid, mechanized, or ritualistic." 460 U.S. at 713 15, 103 S.Ct. at 1481 82 (citations, quotations and note omitted).

[Nuclear & Environmental Whistleblower Digest XI A]
PRIMA FACIE CASE ANALYSIS ONCE CASE TRIED ON THE MERITS

In Williams v. Baltimore City Public Schools System , ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), the ARB complimented the ALJ in affirming her "well written, well reasoned recommended decision." In a footnote, however, the ARB stated that the ALJ erred in examining whether Complainant had established a prima facie case, stating that "after a whistleblower case has been fully tried on the merits, the ALJ does not determine whether a prima facie showing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity."

To the same effect Mourfield v. Frederick Plaas & Plass, Inc. , ARB Nos. 00 055 and 00 056, ALJ No. 1999 CAA 13 (ARB Dec. 6, 2002) (criticizing ALJ's use of prima facie case analysis);

But see Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), in which the ARB analyzed whether Complainant had established a prima facie case, and thereby sharpened the issues remaining for decision. For instance, the ARB analyzed the issue of adverse action sufficiently to find that only a couple of complained of actions by the employer in fact constituted adverse action within the meaning of the environmental whistleblower statutes.

[Nuclear & Environmental Whistleblower Digest XI A]
WHETHER CLOSE ANALYSIS OF ALL PROOF ELEMENTS IS NECESSARY WHEN THERE IS OVERWHELMING EVIDENCE THAT THE ELEMENT HAS BEEN ESTABLISHED

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB assumed without detailed analysis that several elements of the prima facie case had been established. For instance, the ARB found that Complainant's activities were so well publicized that it was safe to assume that her employer had knowledge of them. Similarly, where the Complainant had written nine letters to Congress and 56 internal documents, and had presented evidence of 13 employment actions over a span of about four years, the ARB merely assumed that a prima facie showing raising an inference of causation had been made, and proceeded to the determinative portions of the analysis. But see Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), finding that ALJ should have analyzed protected activity closely, even though the record clearly established it, in order to determine whether there was a causal link between the activity and workplace harassment.

[Nuclear and Environmental Whistleblower Digest XI A]
FAILURE OF COMPLAINT OR OTHER PLEADING TO SET OUT A PRIMA FACIE CASE

In Nickerson v. Plains Dairy Products , 2001-CAA-10 (ALJ July 17, 2001), Complainant was directed in a pre-hearing order to file a detailed complaint alleging how the matter fell within the CAA, his activities that he considered protected activity, and the specific discrimination alleged against the Respondent. Complainant never filed a complaint, but later did file an answer to Respondent's motion for summary judgment/motion to dismiss for failure to state a claim for which the court could grant relief. Complainant's answer, however, did not identify any specific violations. The ALJ, citing caselaw to the effect that although a pro se litigant is held to less stringent pleading requirements, must nonetheless meet minimal pleading requirements, and, in a whistleblower case, must set forth a prima facie of case retaliation, recommended that the case be dismissed.

[Nuclear & Environmental Digest XI A]
BURDEN OF PROOF AND PRODUCTION

See Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), for a recent overview of the burdens of proof and production in a circumstantial evidence case in ERA whistleblower cases.

[Nuclear & Environmental Digest XI A]
ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE CASE ANALYSIS NOT RELEVANT

Once a case is fully tried on the merits, it is not necessary for the ALJ to determine whether the complainant presented a prima facie case. Once the respondent has produced evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Eltzroth v. Amersham Medi-Physics, Inc. , 1997-ERA-31 (ARB Apr. 15, 1999).

[Nuclear & Environmental Digest XI A]
VIEW THAT EVEN ONCE CASE FULLY TRIED ON MERITS, PRIMA FACIE CASE ANALYSIS MAY HAVE SOME RELEVANCY

In Ilgenfritz v. U.S. Coast Guard Academy , 1999-WPC-3 (ALJ Mar. 30, 1999), the ALJ recognized that in a fully litigated case, the analysis of a prima facie case may not serve any useful purpose since the final decision will rest on the complainant's ultimate burden of proof. The ALJ, however, noted that working through the prima facie elements is still useful since the ultimate burden of proof still involves many of the elements covered in the prima facie analysis Moreover, the ALJ noted "if the complainant, even in a fully litigated hearing, fails to establish an element of the prima facie case, evaluating whether an ultimate burden of proof is met may not serve any purpose." Slip op. at n.29.

[N/E Digest XI A]
PRIMA FACIE CASE ANALYSIS IS NOT RELEVANT ONCE COMPLAINT IS FULLY TRIED ON MERITS

Where a case is fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. If he or she did not, it matters not at all whether he or she presented a prima facie case. If she did, whether she presented a prima facie case is not relevant. Adjiri v. Emory University , 97-ERA-36 @ 6 (ARB July 14, 1998).

XI.A.1. Elements of prima facie case

Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984).

Citing DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983), the court set out the elements of a discrimination claim under Section 5851: (1) That the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding. The Court of Appeals held that the phrase "in an NRC proceeding" describes every action by quality control inspectors because of their duty to enforce NRC regulations.

XI.A.1. Prima facie case; elements

Under Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Title XI II case), the employee must initially present a prima facie case consisting of a showing that he engaged in protected conduct, that the employer was aware of that conduct and that the employer took some adverse action against him. In addition, as part of his prima facie case, "the plaintiff must present evidence sufficient to raise the inference that . . . protected activity was the likely reason for the adverse action." Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982) (Title VII case).

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

XI.A.1. Elements of prima facie case; CAA

To demonstrate a prima facie case of retaliatory discharge under section 507(a) of the Clean Air Act, 33 U.S.C. §; 1367(a), a complainant must show that

he or she was an employee of the party charged with discrimination;
the plaintiff was engaged in a protected activity under the Clean Air Act;
the employer took an adverse action against the complainant; and
the evidence created a reasonable inference that the adverse action was taken because of the plaintiff's participation in the statutorily protected activity.

Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).

XI.A.1. Burden of proof; disparate treatment cases

The employee has an initial burden of proving by a preponderance of the evidence that retaliation for protected conduct "played some role" in the termination decision. The burden then shifts to the employer. The employer must show that the employee would have been terminated even if the employee had not engaged in the protected conduct. Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).

XI.A.1. Elements of a prima facie case

If a complainant in a whistleblower case establishes a prima facie case, the burden that shifts to the respondent is one of production or going forward with the evidence, not of proof.

Saporito v. Florida Power & Light Co., 90-ERA- 27 and 47 (Sec'y Aug. 8, 1994).

XI.A.1. No requirement of reporting safety concerns to any certain individual

There is no requirement that an employee's safety concerns must be reported to a "project ombudsman" or a health physics technician to be protected under the ERA. Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9, 1988).

XI.A.1. Elements of prima facie case

In order to establish a prima facie case, a complainant must show that he or she engaged in protected activity, that he or she was subject to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. The complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.

Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

XI.A.1. Prima facie case

A prima facie case requires a showing sufficient to support an inference of unlawful discrimination, but this burden is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). To establish a prima facie case, the complainant must show

that he or she engaged in protected activity,
that he or she was subject to adverse action, and
that the employer was aware of the protected
activity when it took the adverse action.

Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991). The complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Direct evidence is not required for a finding of causation. The presence or absence of a retaliatory motive is provable by circumstantial evidence, even if witnesses testify that they did not perceive such a motive. Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040, 68 L.Ed.2d 237, 101 S.Ct. 1757 (1981). Accord Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

XI. A. 1. Elements of a prima facie case

If a complainant in a whistleblower case establishes a prima facie case, the burden that shifts to the respondent is one of production or going forward with the evidence, not of proof.

Saporito v. Florida Power & Light Co., 90-ERA- 27 and 47 (Sec'y Aug. 8, 1994).

XI.A.1. Elements of prima facie case

Employee filed claim with Department of Labor, alleging that his job transfer was the result of deliberate discrimination by employer (TVA) against him due to his participation in the NRC inspection process. The Secretary awarded relief to employee. Both employee and TVA sought review of the Secretary's decision. The court stated that the particular elements of a valid discrimination claim include proof: (1) that the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions, or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act of 1974 or the Atomic Energy Act of 1954. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

XI.A.1. Prima facie case; elements

Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).

The ALJ's Recommended Decision and Order determined that the evidence did not support an inference of retaliatory motivation on AP&L's part and therefore, concluded that petitioner failed to establish a prima facie case of retaliatory discharge under section 5851(a). In the alternative, the ALJ determined that even if it could be found that petitioner had established a prima facie case, AP&L, nevertheless, should prevail because petitioner would have been discharged regardless of his having engaged in protected activity. In the Secretary's Final Decision and Order she adopted only the ALJ's finding that petitioner had not established a prima facie case of retaliatory discharge and dismissed the complaint. Petitioner sought review in the Eighth Circuit pursuant to section 5851(c). The Court of Appeals held that the ALJ made findings which satisfied the elements of a prima facie case of retaliatory discharge: (1) engagement in protected activity; (2) defendant's awareness of plaintiff's engagement in protected activity; (3) plaintiff's subsequent discharge; and (4) that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive.

WEIGHING OF EVIDENCE ON CONTRIBUTING FACTOR ELEMENT; NOTICE OF EN BANC REVIEW

In Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), , the ARB provided notice that it will address, en banc, the "contributory factor" analysis addressed in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014). Although Powers is a FRSA case, and Fordham is a SOX case, both are analytically grounded in the burdens of proof specified in AIR21, and therefore are of importance to any whistleblower cases that also reference the AIR21 burdens of proof.

[Nuclear & Environmental Digest XI A 2 a]
MOTIVATING FACTOR; TEMPORAL AND DIRECT EVIDENCE

In Joyner v. Georgia-Pacific Gypsum, LLC , ARB No. 12-028, ALJ No. 2010-SWD-1 (ARB Apr. 25, 2014), the Complainant was the Respondent's Senior Regional Environmental Resource officer. He was responsible for environmental management for a gypsum plant. One of his responsibilities was to prepare a letter certifying compliance with a 2006 consent order the Respondent had entered into with the State of Georgia Department of Natural Resources, Environmental Protection Division concerning the stockpiling of rejected wallboard. The consent order required the Respondent to reduce such stockpiles and to allow surveys to determine compliance with the consent order. Rejected wallboard could be used as riser boards (spacers for stacking and transporting of finished wallboard). In 2008, the Respondent's plant manager authorized storing riser materials outside the plant because of lack of space inside. During a state inspection review, the inspector informed the Complainant that the externally stockpiled riser material was subject to the consent order and needed to be included in the survey. The Complainant brought the inspector to the plant manager; the manager stated his belief that the riser material was product not subject to the consent order. In a later conference call that included the Complainant, the Respondent's attorney advised that the riser material was not subject to the consent order. The Complainant was later informed that the Respondent had concluded that the riser material was not subject to periodic compliance reviews under the consent order. When the time came for the Complainant to submit a draft compliance certification letter to the plant manager and a regional manager, the Complainant did not raise any concerns about the stockpiled riser material. At the ALJ hearing the Complainant testified that he did not do so because he did not think it a good career move knowing that the managers already told him not to raise the issue. The same day of the submission of the draft compliance letter, however, the Complainant complained to the Respondent's hotline alleging numerous violations, including the failure to count the riser materials in the consent order survey. The Complainant subsequently filed a written "Guideline Complaint." About one month later the Complainant was terminated from employment by the Senior VP of Operations and Compliance. That VP testified that the reason for the termination was that the Complainant either lied in his Guideline Complaint or prepared a compliance letter he knew was false. The VP further concluded that the compliance letter was accurate and that the Guideline Complaint of wrongdoing by the plant manager was false and made in bad faith.

SWDA's coverage of employees whose duties are as a safety official

The ALJ determined in a decision granting partial summary that the Complainant's complaints to his supervisors were not protected activity because they were within the scope of his job duties as a safety official of the company. The ARB stated that although its decision on appeal did not turn on this issue, the ALJ's ruling was legal error needing correction. The ARB wrote:

The ARB has established that employees who report safety or environmental concerns as part of their job responsibilities engage in protected activity. ... As the Board noted in Lee v. Parker-Hannifin Corp. , ARB No. 10-021, ALJ No. 2009-SWD-003 (ARB Feb. 29, 2012), the SWDA has been interpreted to extend whistleblower protection to include internal complaints made to supervisors. ... Moreover, the ARB has consistently held that "employees who report safety concerns that they reasonably believe are violations of [federal whistleblower statutes] are engaging in protected activity, regardless of their job duties." ... Federal appellate courts agree. See Trimmer v. U.S. Dep't of Labor , 174 F.3d 1098 (10th Cir. 1999); Stone & Webster Eng'g Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997); Bartlik v. U.S. Dep't of Labor , 73 F.3d 100 (6th Cir. 1996); Bechtel Constr. Co. v. Sec'y of Labor , 50 F.3d 926 (11th Cir. 1995); Kansas Gas & Elec. Co. v. Brock , 780 F.2d 1505 (10th Cir. 1985); Mackowiak , 735 F.2d 1159.

USDOL/OALJ Reporter at 12 (some citations omitted).

Motivating factor analysis

The ARB then turned to the Guideline Complaint made by the Complainant. The ARB affirmed the ALJ's findings that this complaint constituted SWDA protected activity, but found that the ALJ erred in determining that this complaint was not a motivating factor for the termination. Under the SWDA, the complainant must show that the protected activity "caused or was a motivating factor in the adverse action alleged in the complaint." 29 C.F.R. §; 24.109(b)(2). The complainant only needs to show that the protected activity was a motivating factor, not the motivating factor. The ARB found that the uncontroverted evidence in the instant case satisfied this criteria. There was temporal proximity between the protected activity and the adverse action. More importantly, there was direct evidence that the protected activity motivated the adverse action. The ARB pointed to testimony by the Employer's HR Director indicating that the termination was tied to information received from the Complainant's Guideline complaint. The ARB concluded: "But for the Guideline Complaint, there would have been no investigation into whether a false certification letter had been submitted or of Joyner's involvement in the submission of that letter." The ARB also pointed to testimony by the VP who had fired the Complainant (Durkin) that he had concluded that the Complainant either lied in the Guideline Complaint or misled his immediate supervisors about the compliance letter for which he was primarily responsible. The ARB stated: "Given these facts, if Durkin terminated Joyner's employment because of his involvement in preparing the compliance certification letter, then the rationale for holding that Joyner's protected activity was a motivating factor in his suspension is equally applicable to Durkin's termination decision; but for Joyner's Guideline Complaint, there would have been no investigation into whether a false certification letter had been submitted or of Joyner's involvement in the preparation of that letter." The ARB held that "[i]t is no defense to the determination that the Guideline Complaint was a motivating factor in the employment termination decision to assert that Joyner made false claims of violation of the SWDA."

Finally, the ARB considered whether the Employer could avoid liability under the SWDA by proving by a preponderance of the evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior. See 29 C.F.R. §; 24.109(b)(2). The ARB found that the evidence in the instant case was so compelling that the Respondent could not make such a showing, and that a remand to the ALJ was unnecessary. The ARB found that the Complainant's Guideline Complaint was the protected activity in this case, and that absent the Guideline Complaint there had been no basis or reason offered by the Respondent for terminating the Complainant's employment.

[Nuclear and Environmental Digest XI A 2 a]
SUBSTANTIAL EVIDENCE SUPPORTED DOL'S FINDING THAT THE PETITIONER'S WHISTLEBLOWER STATUS DID NOT CONTRIBUTE TO COMPANY'S DECISION NOT TO HIRE THE PETITIONER

In Hasan v. USDOL , No. 13-1886 (3d Cir. Jan. 23, 2014) (per curiam) (unpublished) (case below ARB No. 12-096, ALJ Nos. 2004-ERA-22 and 27), the Petitioner, a civil/structural engineer, responded to two Internet advertisements placed by Enercon Services, Inc. seeking an engineer. The Petitioner did not receive an employment offer for either position, and thereafter filed ERA whistleblower complaints. After a seven day hearing, the ALJ denied the complaints, and the ARB adopted the ALJ's finding that the Petitioner's protected activity (prior whistleblowing) was not a contributing factor in Enercon's employment decisions. On appeal, the Third Circuit found that substantial evidence supported the ARB's conclusion. The evidence showed that Enercon's procedure for filling positions was to select existing employees first, then individuals recommended by clients, then known high performers, and only then applicants from a database of resumes gleaned from its Internet advertisements. Enercon often advertised for positions that did not exist as a means of obtaining additional resumes for its database. The Petitioner was not an existing employee, was not known to Enercon as a high performer, and had not been recommended by a client. The ALJ found based on the testimony of Enercon employees that Enercon had ultimately not hired anyone for the positions in question. Of the managers who hired engineers during the relevant period, only one was aware of the Petitioner's whistleblowing status. Enercon had purposely limited the group of persons who knew about the Petitioner's status in an effort to minimize the potential that it would be used against him. The engineers hired by the one manager who knew of the Petitioner's status were either known by Enercon or its client to be good performers. Moreover, the ALJ found that that this manager had not relied on the selected candidates resumes, and did not rely on Enercon's database of resumes in regard to the open positions. The ALJ also found that Enercon had followed protocol and treated the Petitioner's resumes the same way as any other resume received, that no one had been instructed to discriminate against the Petitioner in any way, that information about the Petitioner's whistleblowing activity was restricted to three persons, and that Enercon actually encouraged whistleblowing by hiring and promoting past whistleblowers. The court found that substantial evidence supported these findings. The court rejected as without support allegations by the Petitioner that the ALJ was biased against him and that the ARB had acted illegally. The court stated: "Simply ruling against a party is not evidence of bias, and despite Hasan's assertions, nothing in the record suggests anything untoward." Slip op. at 9.

[Nuclear and Environmental Digest XI A 2 a]
CAUSATION; PROTECTED ACTIVITY FOUND NOT TO BE CONTRIBUTING FACTOR IN THE NON-PAYMENT OF A BONUS WHERE THE RECORD ESTABLISHED THAT THE NON-PAYMENT WAS BASED ON A CONSISTENTLY APPLIED, NON-PRETEXTUAL COMPANY POLICY

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant resigned in protest over the timing of a nuclear reactor restart. The Respondent's HR department ordered removal of the Complainant's performance bonus payment for the prior year from a subsequent paycheck. The ALJ found that the Complainant's protected activities were not a contributing factor to the non-payment of the bonus because the record established that the Respondent's company policy required that a person be an employee on the distribution date to receive a performance bonus for the prior year. This policy reflected the circumstance that the bonus partially represented an incentive for future performance. The ALJ reviewed circumstantial evidence associated with animus, pretext, disparate treatment and temporal proximity, but found that the non-payment of the bonus to the Complainant occurred under a consistently applied, non-pretextual company policy that the recipient be an employee on the payment date. The ALJ noted that the temporal proximity was strong, but that it was negated by the intervening event of the Complainant's resignation. On appeal, the Complainant argued that the ALJ erred because "nothing in the statute or regulations allows the proven inference to be rebutted by evidence of poor performance or attendance, or the employer's dissatisfaction with the employee on either." USDOL/OALJ Reporter at 12, quoting Complaint's brief). The Complainant further argued that the ALJ was required to determine the existence of a prima facie case.

The ARB found that the Complainant's argument reflected a misunderstanding of the applicable law. The ARB stated that "Once a case goes to hearing before an ALJ, proof of contributing factor is required by a preponderance of the evidence; whether there has been a prima facie showing is irrelevant. Thus, a causal link is established if Hoffman showed by a preponderance of the evidence that his protected activity was a "contributing factor" in the adverse action taken against him. "Contributing factor" means any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." USDOL/OALJ Reporter at 12 (footnotes omitted). The ARB found that substantial evidence supported the ALJ's findings of fact, and that the ALJ correctly applied the applicable law.

[Nuclear and Environmental Digest XI A 2 a]
CAUSATION; MOTIVATING FACTOR FOUND NOT TO BE ESTABLISHED WHERE SUBSTANTIAL EVIDENCE SHOWED THAT THE COMPLAINANT'S PROTECTED ACTIVITY WAS NOT PARTICULARLY TROUBLING TO THE RESPONDENT AND THAT THE RESPONDENT'S ACTIONS WERE MOTIVATED BY THE COMPLAINANT'S UNSUCCESSFUL PERFORMANCE AS A MANAGER

Under the whistleblower provision of the Safe Drinking Water Act, a complainant must prove that protected activity was a "motivating" factor rather such activity was a "contributing" factor. This requires a stronger showing by the complainant. In Onysko v. State of Utah, Dept. of Environmental Quality , ARB No. 11-023, ALJ No. 2009-SDW-4 (ARB Jan. 23, 2013), the ARB found that the ALJ did not commit reversible error in rejecting the Complainant's claim under the SDWA that his protected activities were motivating or substantial factors in the Respondent's unfavorable employment actions. The Complainant presented circumstantial evidence in attempting to prove that whistleblower discrimination motivated the Respondent. He attempted to show temporal proximity, procedural irregularities, early termination of a probationary promotion, and interpersonal conflicts among the parties. The ARB found, however, that while the Complainant's evidence pointed to protected activity, it was not clear that it was particularly troubling to the Respondent, making his whistleblower claim less persuasive. The ARB also found that substantial evidence, which the ALJ believed, supported the Respondent's stated reasons for its actions. Those reasons related to the Complainant's unsuccessful performance as Engineering Section Manager rather than protected activity. The ARB found that the record as a whole reveals that the relevant periods" involved many diverse and separate events and individuals that [the Complainant] attempts to connect unsuccessfully with the singular thread of whistleblower discrimination."

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
"MOTIVATING FACTOR" RATHER THAN "CONTRIBUTING FACTOR" IS COMPLAINANT'S BURDEN OF PROOF IN A FWPCA WHISTLEBLOWER CASE;
EMPLOYER'S BURDEN IN A FWPCA CASE IS TO PROVE THAT IT WOULD HAVE TERMINATED COMPLAINANT IN ABSENCE OF PROTECTED ACTIVITY BY A "PREPONDERANCE OF THE EVIDENCE" RATHER THAN BY "CLEAR AND CONVINCING EVIDENCE"

In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 12-002, ALJ No. 2006-WPC-1 (ARB Aug. 29, 2012), the ARB affirmed the ALJ's Decision and Order dismissing the Complainant's Federal Water Pollution Control Act whistleblower complaint, largely based on the ALJ's credibility determinations and consequent findings that the Complainant had been fired for performance problems related to a construction project and the Complainant's request to use a full month of vacation leave. The ARB noted that the ALJ had laid out the wrong standard for causation and made some findings that strayed from the relevant whistleblower issues:

The ALJ stated that a complainant must prove his protected activity was a contributing factor, citing Speegle v. Stone & Webster Constr., Inc. , ARB No. 06-041, ALJ No. 2005-ERA-006, slip op. at 8 (ARB Sept. 24, 2009), when the FWPCA regulations at 29 C.F.R. §; 24.109(b)(2) state that a complainant must demonstrate "by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action." The ALJ also wrote on pages 36 and 43 that a complainant must demonstrate by a preponderance of the evidence that the respondent's proffered reasons are merely pretext for retaliation. While "pretext" evidence may be used as circumstantial evidence of true motives, the complainant is not required to show pretext but merely prove that "the protected activity caused or was a motivating factor in the adverse action," even if it was only one of several motivating factors. 29 C.F.R. §; 24.109(b)(2). Several of the ALJ's conclusions were unhelpful because they did not conform to the law including his conclusion that Kanj's termination "likely was not the result of any retaliatory motive on the part of his employers," and "the sum total of these reasons provides adequate grounds for Kanj's termination." D. & O. at 43. The issue is what caused the adverse action, more specifically, if protected activity motivated it, not what likely did not cause the adverse action. Further, the Act does not ask whether a respondent had good reasons to discriminate against a person, only whether the discrimination was motivated in any way by protected activity.

USDOL/OALJ Reporter at 6, n.4. Nonetheless, although the ALJ had wrongly employed the "clear and convincing evidence standard" rather than the preponderance of the evidence standard that applies to a FWPCA case, it did not matter because the Respondent met its burden to prove that it would have terminated the Complainant's employment absent any protected activity by a preponderance of the evidence.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CONTRIBUTING FACTOR; WHERE COMPLAINANT'S PROTECTED DISCLOSURES CAUSED THE RESPONDENTS TO OPEN AN INVESTIGATION THAT LED TO THE COMPLAINANT'S DISCHARGE, THE COMPLAINANT HAS ESTABLISHED THE CONTRIBUTING FACTOR ELEMENT OF AN ERA WHISTLEBLOWER COMPLAINT AND THE BURDEN SHIFTS TO THE EMPLOYER

In Smith v. Duke Energy Carolinas LLC , ARB No. 11-003, ALJ No. 2009-ERA-7 (ARB June 20, 2012), the Complainant was a night shift security guard for a company under contract with Duke Energy, performing fire watch surveillance at a nuclear power plant. Logs were to be signed after each visual inspection; however, on occasion the Complainant and his partner pre-signed the logs. In January 2008, a supervisor with Duke Energy met with all four fire watchers, informed them about an action the NRC had taken against a nuclear station due to falsified fire watch logs, and told them that he expected them to follow correct procedures. The next month, the Complainant observed a blank inspection log entry from the prior day shift. When the Complainant asked about it, one of the day shift fire watchers said that he was doing a favor for the other day shift fire watcher and was completing her rounds. The Complainant told that day shift fire watcher that the log needed to be corrected or he would need to report the discrepancy. The log, however, was not corrected.

The Complainant was later informed by a project coordinator and an HR official that the day shift fire watcher who had been covered for had filed a sexual harassment complaint against the Complainant. The Complainant denied the harassment charge, and told the managers about the falsified time sheets. Following an investigation, Duke Energy released all four fire watchers. One day shift watcher was released for failing to conduct the fire watch for which she signed. One day shift watcher was released for failing to correct the first watch log. The Complainant was released for failing to timely disclose the problem. The Complainant's partner was not implicated, but was nonetheless released "to get a fresh start with fire watchers" at the nuclear power plant. The contractor thereafter terminated the employment of the two day shift watchers and the Complainant due to lack of integrity and trustworthiness.

The ALJ found that the Complainant had engaged in protected activity, but that it was not a contributing factor in his termination. The ALJ found insufficient evidence showing that animosity or hostility motivated the company's decision to terminate the Complainant, and that instead the termination decision was motivated by the company's desire to ensure that employees are reliable and trustworthy, and that the Complainant's failure to immediately report the falsification incident demonstrated that he lacked these traits.

On appeal, the ARB found that the ALJ's contributing factor finding was not in accordance with the law governing the "contributing factor" element of an ERA whistleblower complaint. The ARB noted that it had adopted the interpretation of "contributing factor" as set out in Marano v. Dep't of Justice , 2 F.3d 1137, 1140 (Fed. Cir. 1993), in which "contributing factor" was interpreted to mean "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." Marano , 2 F.3d at 1140. The ARB found that the facts clearly showed that the Complainant's protected communications contributed to his termination: those disclosures precipitated the investigation into the falsification of the fire watch logs, and while the Complainant delayed for seven days informing managers, "it is undisputed that the only reason that managers learned about the practice was because [the Complainant] notified them." The ARB found that the Complainant's disclosures were "inextricably intertwined" with the investigations that resulted in his discharge, and the content of those disclosures gave the Respondents the reasons for their personnel actions against the Complainant.

The ARB remanded, noting that it was now the Respondents' burden to demonstrate by clear and convincing evidence that they would have taken the same personnel action absent the protected activity.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CONTRIBUTING FACTOR; HURDLE IS LOWER FOR ERA WHISTLEBLOWER COMPLAINTS THAN IN OTHER DISCRIMINATION LAWS, BUT COMPLAINANT MUST STILL ESTABLISH FACTOR BY PREPONDERANCE OF THE EVIDENCE

In Addis v. Dept. of Labor , No. 08-1009 (7th Cir. July 30, 2009), the Complainant resigned from her job as Operations Supervisor at a nuclear power station after an argument with her supervisor over the company's requirement that managers make regular entries in the files of the employees that they supervised. The Complainant's supervisor felt that her file entries were not timely and not sufficiently critical, while the Complainant thought the requirement was pointless at best, and at worst detrimental to her ability to focus on plant security. After her resignation, but during her two weeks' notice, the Complainant filed an internal complaint asserting that the reporting requirement threatened plant safety. Then, prior to the date the resignation was to become effective, the Complainant conveyed a desire to rescind the resignation. The Respondent declined to accept the attempt to rescind the resignation. The Complainant filed an ERA whistleblower complaint OSHA and the ALJ found that the Complainant failed to carry her burden of proof. On appeal, the ARB affirmed the ALJ solely on the ground that the Complainant failed to sustain the burden of proving that her protected activity was a contributing factor in her termination. Because the ARB adopted the ALJ's findings on this issue in their entirety, the Seventh Circuit referred to the ALJ's decision in its discussion.

The Seventh Circuit noted that the ERA "contributing factor" standard is a lower hurdle to clear than the bar set by other employment statutes; it requires something less than a substantial or motivating factor. However, a complainant must prove the contributing factor by a preponderance of the evidence. In the instant case, conducting APA review of agency action, the Court found that substantial evidence supported the ALJ's decision, and that the ALJ had captured a sensible middle ground of reality that lied between the parties' contentions. The court found that the Complainant's resignation differentiated the her from other managers, some of whom also opposed the working file requirement, but none of whom resigned. The court found that "[t]he ALJ was entitled on the record before him to find that while management was continually frustrated by Addis's performance, her angry resignation was the straw that broke the camel's back, prompting the company to part ways with her." Slip op. at 10-11.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CONTRIBUTING CAUSE; EVIDENCE OF POLITICAL PRESSURE TO REMOVE COMPLAINANT FROM PROJECT MANAGEMENT OF CLEANUP OF COPPER MINING SITE

In Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the Complainant was an environmental protection specialist for the Department of Interior, Bureau of Land Management (BLM) whose main task was related to the clean-up of the Yerlington copper mining site in Nevada. In 2000, EPA determined that the mine qualified as a superfund site under CERCLA; the state of Nevada did not agree that the site should be part of CERCLA's national priorities list; instead Nevada's Department of Environmental Protection (NDEP) developed a memorandum of understanding (MOU) with EPA and BLM in 2002 that permitted the state to take the lead in developing a work plan to clean up the site in a manner "not inconsistent with CERCLA." The ARB found that a memo indicated that the Complainant was fired because county commissioners and a congressman were concerned with his continued association with project management at the site. The ARB found that although the memo and other evidence indicated dissatisfaction with the way the Complainant did his work, it also showed that BLM had a retaliatory motive in firing the Complainant because he (1) raised concerns that the contamination at the Yerlington site was much greater than previously documented; (2) insisted that the work plans submitted by the MOU partners and ARCO (which was responsible for repaying part of the costs of the clean-up) comply with CERCLA; and (3) refused to back down from his conclusions about worker health and safety at the site. The ARB also noted that just a few hours before the BLM State Director directed a city manager to draft a rationale for firing the Complainant, the county commissioners told the State Director that they were unhappy with the Complainant's efforts to implement CERCLA at the site and wanted him removed as project manager. The Respondent failed to establish by clear and convincing evidence that it would have fired the Complainant in the absence of protected activity, and therefore the ARB affirmed the ALJ's holding that BLM had violated the SDWA and CERCLA.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CAUSATION; PROTECTED ACTIVITY AS A CONTRIBUTING FACTOR TO ADVERSE ACTION IN AN ERA CASE

In Keener v. Duke Energy Corp. , ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006), PDF | HTM the ARB declined to consider whether the proximity of the Complainant's protected activity and the Respondent's decision to institute a position review process was circumstantial evidence of discrimination where the "initiation of the review process was not an adverse action because it was not 'materially adverse' to [the Complainant's] terms and conditions of employment." Slip op. at 11-12 (footnote omitted). The Board found that this review was innocuous in and of itself. The Board concluded that, regardless of the motives for starting the review, the record did not contain a reasonable basis on which to conclude that this initial step would have inevitably resulted in the creation of a new position to which the Complainant would not be selected. In addition, the review occurred more than 180 days prior to filing of the complaint, and was therefore time barred. Later in the decision, the Board clarified that the official who was aware of the Complainant's protected activity was responsible for or influenced the decisions leading to a compression of two security jobs into one, opening the position to all interested applicants within the Respondent's organization, and a selection panel's decision to recommend another candidate.

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CAUSATION; STANDARD OF PROOF IN CAA CASE IS THAT PROTECTED ACTIVITY WAS A MOTIVATING FACTOR IN ADVERSE ACTION; PRETEXT NOT SHOWN MERELY BY PRESENTING SOME EVIDENCE, IF SUCH EVIDENCE IS NOT A PREPONDERANCE; INTERVENING EVENT BREAKS CAUSAL INFERENCE

In Lopez v. Serbaco, Inc. , ARB No. 04-158, ALJ No. 2004-CAA-5 (ARB Nov. 29, 2006), PDF | HTM the Complainant had reported leaks in bags used to collect hazardous waste and refused to turn on the transfer pump that would fill those bags. A supervisor turned on the pump and left for home, leaving the Complainant at the site. Later, the Complainant was found in a position that the Respondent's witnesses considered to be sleeping, and the Complainant was fired based on the Respondent's policy that sleeping on the job was grounds for termination. The Complainant alleged that the firing was based on trumped up charges, and that he was in fact fired for complaining about turning on the transfer pump.

On appeal, the ARB stated that "[t]o show that adverse action was taken 'because of' protected activity, [the Complainant] must show that his protected activity was a 'motivating' factor in [the Respondent's] decision to dismiss him." USDOL/OALJ Reporter at 4 (footnote omitted) (the footnote contains a clarification that the ARB misspoke in Saporito v. Central Locating Servs. , ARB No. 05-004, ALJ No. 2001-CAA-13 (ARB Feb. 28, 2006), when it indicated that the complainant's burden was to show that his protected activity was a "contributing" factor; it should have said "motivating" factor; the Board observed that a complainant "must prove more when showing that protected activity was a 'motivating' factor than when showing that such activity was a 'contributing factor'").

Although circumstantial evidence suggested that the Complainant was fired because he reported the emission problem, the ARB found that it was not a preponderance of the evidence. Rather, the record established that he was fired for sleeping on the job, a serious infraction of company rules.

The ARB also found that the Complainant had not established that the sleeping infraction ground was pretext. The Board found that the intervening incident of discovering the Complainant in a position where he appeared to be sleeping on the job "eliminated the causal link that otherwise might have been suggested by the temporal proximity between the protected activity and the adverse action." USDOL/OALJ Reporter at 8 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CAUSATION; DECISION TO DENY DISABILITY RETIREMENT MADE BY LEGALLY DISTINCT RETIREMENT SYSTEM RATHER THAN RESPONDENT

In Durham v. Tennessee Valley Authority , 2006-CAA-3 (ALJ Feb. 13, 2006), the Complainant alleged that he was denied disability by the Tennessee Valley Authority in retaliation for his prior whistleblowing complaints and other complaints to state and federal agencies. The ALJ recommended dismissal on summary decision in favor of the Respondent where the uncontested evidence was that the decision to deny the Complainant's disability retirement application was made by the TVA Retirement System (TVARS), which is a legal entity separate and distinct from TVA, the TVARS was not the Complainant's employer, and the TVARS decision makers had no knowledge of the Complainant's protected activity.

XI.A.2.a. Distinction between raising inference and proving motivation

To establish a prima facie case, a complainant need produce only enough evidence to raise the inference that the motivation for the adverse action was his protected activity -- not to establish motivation. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993).

[Nuclear and Environmental Whistleblower Digest XI A 2]
CAUSATION; LEGITIMATE NON-DISCRIMINATORY REASONS FOR DISCHARGE PREDATING THE PROTECTED ACTIVITY DO NOT AXIOMATICALLY SEVER THE CAUSAL LINK IF THE COMPLAINANT WOULD NOT HAVE BEEN DISCHARGED "BUT FOR" PROTECTED ACTIVITY

In Bhat v. District of Columbia Water and Sewer Authority , 2003-CAA-17 (ALJ Nov. 1, 2005), the manager who was responsible for the Washington, D.C. Water and Sewer Authority's (WASA) compliance with a lead monitoring program mandated by federal Environmental Protection Agency (EPA), filed a whistleblower complaint under the Safe Drinking Water Act of 1974 (SDWA), 42 U.S.C. §; 300j-9(i), alleging that she was fired because she blew the whistle on the lead levels in the D.C. water supply by informing the EPA about the problem. The Respondent claimed that the manager had been fired because she had received two successive unsatisfactory performance evaluations and not because of activity protected under the SDWA. The ALJ rejected this defense, observing that, although the manner in which the Complainant carried out her duties and responsibilities was occasionally abrupt and abrasive and had resulted in a justifiably unsatisfactory performance evaluation in 2001, the Respondent had not followed its own personnel policies, practices and procedures in dealing with the Complainant's alleged later performance deficiencies. The ALJ wrote:

[I]t is a well-settled principle in whistleblower adjudications that the protections afforded by these statutes are not reserved exclusively for the model employee. Dale v. Step 1 Stairworks , 2002-STA-00030 (ALJ April 11, 2003), aff'd, in part, and rev'd in part, on other grounds (ARB March 31, 2005). Consequently, the polemic that performance difficulties preceding protected activity "axiomatically" severs the causal link ignores the fact that legitimate reasons pre-dating the protected activity, alone, are not sufficient to end the inquiry if, despite the reasons alleged, the whistleblower would not have been terminated "but for" the protected activity. See, Consolidated Edison Co. v. Donovan , 673 F.2d 61 (2d Cir. 1982); Mount Healthy City School Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Passaic Valley, supra .

Slip op. at 25.

[Nuclear & Environmental Whistleblower Digest XI A 2 a]
CAUSATION; EVIDENCE THAT COMPLAINANT'S POOR COMMUNICATIONS AND TEAMWORK SKILLS CAUSED DEFICIENT RATING RATHER THAN PROTECTED ACTIVITY; "PROVOCATION" DOCTRINE DID NOT APPLY WHERE COMPLAINANT'S LANGUAGE WAS NOT IMPLUSIVE BUT DELIBERATE

In Smalls v. South Carolina Electric & Gas , ARB No. 01 078, ALJ No. 2000 ERA 27 (ARB Feb. 27, 2004), the ARB found overwhelming evidence that the Complainant received a deficient rating on a performance evaluation because his communications and teamwork skills were not satisfactory, and the record established that pursuit of ERA protected safety related issues did not contribute to the rating. The Board also found that the "employee provocation" doctrine did not apply to excuse the Complainant's objectionable conduct where the Complainant did not engage in impulsive, uncalculated behavior, but instead deliberately and unnecessarily relied on abrasive language and a confrontational approach. See Harrison v. Roadway Express, Inc. , ARB No. 00 048, ALJ No. 1999 STA 37, slip op. at 9 15 and cases there cited (ARB Dec. 31, 2002).

[Nuclear & Environmental Whistleblower Digest XI A 2 a]
MOTIVATION TO DISCRIMINATE; MERE SPECULATION DOES NOT CARRY COMPLAINANT'S BURDEN OF PROOF

In Hasan v. J.A. Jones, Inc. , ARB No. 02 123, ALJ No. 2002 ERA 5 (ARB June 25, 2003), the ARB affirmed the ALJ's decision finding that Respondent's decision makers were not aware of Complainant's previous whistleblowing activities when they decided not to promote him, and that Complainant had produced no evidence that his whistleblowing had motivated Respondents to take other adverse actions such as failing to increase his salary, laying him off, and refusing to transfer or rehire him.

[Nuclear & Environmental Whistleblower Digest XI A 2 a]
RETALIATORY MOTIVE; COMPLIANCE WITH ARB ORDER TO CORRECT EMPLOYMENT REFERENCES; MERE REFERENCE TO EARLIER IMPROPER REFERENCE WITHOUT PROOF OF RETALIATORY MOTIVE IS NOT ERA VIOLATION

In Doyle v. Westinghouse Electric Co., LLC , ARB Nos. 01 073 and 01 074, ALJ No. 2001 ERA 13 (ARB June 30, 2003), the ARB affirmed decisions of the ALJ finding that Complainant had failed to prove that Respondents had acted with retaliatory motive when complying with an ARB order to (1) write to a credit reporting agency to notify the agency that the ARB had found that its earlier denial of Complainant unescorted access to a nuclear plant had been improper and (2) provide a neutral employment reference letter. Complainant argued that Respondent's letter to the credit reporting agency and the copy sent to Complainant's attorney violated the ERA because they identified him as having engaged in protected activity. (one of the credit reporting agency's products was employment reports for prospective employers).

The ALJ found that under the circumstances it would have been unavoidable for Respondent not to reference the prior disqualification in its letter to the credit reporting agency in compliance with the ARB's order. Doyle v. Westinghouse Electric Co. , 2001 ERA 13 (ALJ June 27, 2001) (order granting summary decision to Westinghouse). The ALJ wrote: "Without further indications of specific adverse action, the existence of this letter, which contains no language or instructions detrimental to Complainant, is not sufficient to establish the requisite elements of a prima facie case." Slip op. at 4 (citation omitted).

Complainant had also named Respondent's attorney and her law firm as respondents. The ALJ in a separate ruling dismissed these respondents for the additional reason that they were not Complainant's employer. Doyle v. Westinghouse Electric Co. , 2001 ERA 13 (ALJ June 27, 2001) (order granting summary decision to Respondent's attorney and law firm).

[Nuclear & Environmental Whistleblower Digest XI A 2 a]
KNOWLEDGE OF PROTECTED ACTIVITY; ADJUDICATOR NOT REQUIRED TO RULE ON EVERY INSTANCE OF ALLEGED ACTIVITY WHERE IT WAS CLEAR THAT COMPLAINANT HAD MADE A POINT OF NOTIFYING HER SUPERIORS

Where Complainant had made a point of notifying her supervisors of her activities, the ARB found it safe to assume that Respondent was aware of Complainant's protected activity, even though Respondent may not have had knowledge of every individual activity. Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003).

[Nuclear & Environmental Digest XI A 2 a]
MOTIVATION; RESPONDENT'S PERCEPTION THAT MATTERS, NOT COMPLAINANT'S ACTUAL ACTIONS OR MOTIVES

In Phillips v. Stanley Smith Security, Inc. , ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001), Complainant maintained that he had an extremely limited conversation with a TV station prior to broadcast of a report on a change in security procedure at a local nuclear power plant. The ARB construed Complainant's argument as being that Respondent erroneously concluded that he had engaged in protected activity by giving information to the TV station regarding details of a restructuring plan and turning over to the TV station an e-mail concerning an FBI security alert. There was conflicting testimony about what Complainant said to the TV station and whether he provided the e-mail to the station - the ALJ concluded that Complainant was the source of the TV station's information, and the ARB found no reason not to credit the ALJ's determination on this matter. The ARB, however, wrote that it was not important to the analysis whether Complainant gave the information and e-mail to the TV station, nor what motive Complainant may have had in making such disclosures (if, in fact, made by Complainant). Moreover, the ARB found that it was not important whether Complainant's asserted belief that the security restructuring plan would make the nuclear facility vulnerable to attack was a reasonable belief. Rather, it was Respondent's motive for taking action against Complainant that was decisive - the evidence must support a finding that retaliatory motive animated the adverse employment action taken.

The ARB credited Respondent's representations that it terminated Complainant because it believed that: 1) Complainant disclosed security information about the nuclear power plant to unauthorized personnel at the TV station; 2) Complainant did so not because he was concerned about the safety of the facility, but because he would not be eligible to apply for a new tactical response officer (armed guard) position and would therefore be downgraded to an unarmed guard; and 3) Complainant obstructed their investigation into the disclosure and flatly lied about his activities. Thus, the ARB found that Respondent terminated Complainant's employment not because they believed that he had engaged in activity protected by the ERA, but because it believed that he had turned over security information to an unauthorized person to further his own personal interests, and then lied about it.

One member of the Board dissented from the conclusion that Respondent was not motivated by retaliatory animus in terminating Complainant's employment, finding that Complainant's protected activity of contact with the news media was a contributing factor in the termination. The dissent concluded: "Phillips had the right under the ERA to anonymous and unfettered communication of his concerns regarding the security of the guard restructuring plan, which communication under the facts he reasonably believed was in furtherance of the purposes underlying the ERA. Respondent cannot lawfully assert an employment-related obligation on Phillips' part for full disclosure of his role in derogation of this federal right. "

[Nuclear & Environmental Digest XI A 2 a]
CAUSATION; RETALIATORY ANIMUS

In Thompson v. Houston Lighting & Power Co. , ARB No. 98-101, ALJ No. 1996-ERA-34 (ARB Mar. 30, 2001), Complainant had settled several earlier whistleblower complaints. He subsequently contacted the NRC with a concern over certain language in the settlement agreement (the NRC in fact found that portions of the agreement were in conflict with NRC regulations and public policy). Thereafter, Complainant requested that he be provided with copies of reports of psychological testing done by physicians hired by Respondent in preparation for the damages stage of the hearing in the earlier cases (because the cases had never gone to trial, they had not been previously released). Complainant believed that the settlement agreement entitled him to copies of these reports. When Respondent declined to release the reports, Complainant filed a whistleblower complaint alleging that the refusal was in retaliation for his going to the NRC about the settlement.

Complainant argued that the temporal proximity between his contact with the NRC and Respondent's refusal to turn over the records raised an inference of causation, and apparently, that this inference compelled a finding that retaliatory animus was a contributing factor in the refusal to turn over the records. The ARB found, however, that although temporal proximity might provide powerful evidence of retaliatory animus, the ALJ properly found based upon all of the facts presented to him that Respondent was not motivated by retaliatory animus, Respondent believing that, having settled the complaint, it was under no obligation to produce the records, and that the records were subject to the attorney work product privilege. The ARB held that "[t]he ALJ did precisely what was required by the circumstances of this case: he weighed all of the relevant evidence regarding [Respondent's] motivation, including the evidence regarding temporal proximity, and determined that [Complainant] had not proven his case."

[Nuclear & Environmental Digest XI A 2 a]
CONTRIBUTING FACTOR; BURDEN OF PROOF ON COMPLAINANT

In Hasan v. Commonwealth Edison Co. , ARB No. 00-043, ALJ No. 1999-ERA-17 (ARB Dec. 28, 2000), Complainant was a contract engineer engaged as a design engineer during a two-year effort to restart a nuclear unit shut down to replace reactor fuel and perform corrective maintenance. During his employment, he raised a concern about correct modeling of a hinge. As a result of his raising of the concern, the modeling of the hinge was changed. At the end of the maintenance project, Complainant was released, together with hundreds of other contract engineers. Complainant subsequently filed a complaint with OSHA alleging that the reason for his termination was retaliation for raising a safety concern. The ALJ found that Complainant had not met his burden of proving that the protected activity contributed to the termination of his temporary employment. Respondent established that Complainant was brought on for a limited term understood by everyone involved and normal practice in the trade. The ALJ also declined to find discrimination alleged by Complainant for Respondent's refusal to hire him for two temporary positions that opened after he was terminated from employment where the ALJ found that Complainant was not qualified for either position.

The ARB agreed with the ALJ's decision, noting that "[t]he complainant in an ERA whistleblower case has the burden of proof and that burden must be met by a preponderance of the evidence. Stone & Webster Engineering Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997)." In the instant case, the ARB concurred with the ALJ that Complainant had not met his burden of proving that his protected behavior was a contributing factor in the personnel action. The ARB also held that even if Complainant had met that burden, Respondents had offered clear and convincing evidence that it would have taken the same action anyway.

[Nuclear & Environmental Digest XI A 2 a]
REFUSAL TO HIRE; PRIMA FACIE CASE NOT ESTABLISHED BASED MERELY ON COMPLAINANT'S UNSOLICITED APPLICATION FOR A JOB

In Hasan v. Commonwealth Edison Co. , ARB No. 00-028, ALJ No. 2000-ERA-1 (ARB Dec. 29, 2000), Complainant, a contract engineer, filed an ERA whistleblower complaint alleging discriminatory refusal to hire. He had previously filed a complaint against the same Respondents based on alleged discriminatory discharge and refusal to rehire. The essential difference in the complaints was that Complainant remained unemployed.

While the first complaint was still pending on review before the ARB, Respondents filed motions to dismiss the second complaint with the ALJ, arguing that Complainant failed to allege facts necessary to establish a prima facie case under a "refusal to hire" theory. The ALJ issued an order to show cause why the motions should not be granted, and after consideration of Complainant's response, found that facts sufficient to establish a prima facie case had not been alleged. In the absence of a viable claim, the ALJ saw no reason for discovery or an evidentiary hearing, and therefore recommended that the ARB dismiss the complaint.

On appeal, Complainant -- appearing pro se -- argued that the ALJ's proposed disposition of the matter would be contrary to the Secretary's decision in Studer v. Flowers Baking Company of Tenn., Inc ., 1993-CAA-1 (Sec'y June 19, 1995) (Rule 12(b)(6) dismissal only appropriate when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint). Complainant argued that he would have been able to establish the facts in support of his claim if the ALJ had granted him discovery and an evidentiary hearing.

The ARB observed that a complainant must allege the elements of a prima facie case in a ERA whistleblower case. In regard to element three of a prima facie case that the employer took some sort of adverse action against the complaint four factors must be considered in a complaint grounded in alleged refusal to hire: the complainant must show: 1) that he or she applied and qualified for a job for which the employer was seeking applicants; 2) that, despite his or her qualifications, he or she was rejected; and 3) that after his or her rejection, the position remained open. Thus, Complainant was required to at least allege that Respondents had a job opening for which he was qualified something Complainant had not done.

The ARB also found that Complainant failed to satisfy element four of a prima facie case because he had not alleged the existence of any facts that would raise an inference that his protected activity was likely a contributing factor in Respondents' failure to respond to his unsolicited application. The ARB agreed with the ALJ that Complainant had done nothing more than simply allege that he submitted his resume to Respondents but remains unemployed a naked allegation that is insufficient to support a claim of discrimination. The ARB concluded:

A complainant cannot simply "file a conclusory complaint not well-grounded in fact, conduct a fishing expedition for discovery, and only then amend the complaint in order to finally set forth well-pleaded allegations." Oreman Sales v. Matshushita Elec. Corp ., 768 F.Supp. 1174 (E.D. La. 1991). If the complainant fails to allege a prima facie case, the matter is subject to immediate dismissal. See Lovermi v. Bell South Mobility, Inc. , 962 F.Supp. 136 (S.D. Fla. 1997). Given Complainant's failure to allege a prima facie case, we concur with the ALJ that the instant complaint should be dismissed.

Slip op. at 5 (footnote omitted).

[Nuclear & Environmental Digest XI A 2 a]
PRIMA FACIE CASE; LACK OF EVIDENCE OF CAUSATION

In Agosto v. Consolidated Edison Co. of New York, Inc. , ARB Nos. 98-007 and 98-152, ALJ Nos. 1996-ERA-2 and 1997-ERA-54 (ARB July 27, 1999), the ARB adopted the ALJ's conclusion that Complainant failed to present a prima facie case that he was retaliated against when he was not selected for work during an outage where Respondent presented proof that the non-hire was based on earlier poor performance evaluations, and the ALJ had properly found in an earlier proceeding that those poor performance evaluations were not retaliatory. Complainant had walked out of the courtroom, apparently in frustration over the ALJ's refusal to permit him to re-litigate the issue of whether the performance evaluations were not retaliatory.

[Nuclear & Environmental Digest XI A 2 a]
CAUSAL LINK FOR ADVERSE ACTION; CONSIDERATION OF COMPLAINANT'S PERCEIVED CONFRONTATION STYLE

In Jarvis v. Battelle Pacific NW Laboratory ,1997-ERA-15 (ARB Aug. 27, 1998), Complainant had been suspended for one-week following an incident in which he had made what were perceived as abrasive comments to a DOE supervisor in connection with a personnel matter involving Complainant's wife, who worked for DOE. Earlier, Complainant had engaged in protected activities. The ARB, however, concluded that these protected activities were not the cause of his one-week suspension. Rather, the ARB concluded that Complainant was suspended because of the abrasive comments. The ARB found that, although the individuals who made the decision to suspend may have been aware of prior criticism of Complainant in connection with his confrontational manner, some instances of which may have been manifested in connection with his earlier protected activity, the concerns of the committee members who suspended Complainant were unconnected with the substance of any environmental issues that Complainant may have raised. The ARB found that the inter-personal frictions evidenced in these earlier incidents merely provided context to events leading to the suspension. The ARB also found in regard to dual motive analysis, that even if Complainant's earlier protected activity played some part in the decision to suspend him, Respondent had presented clear and convincing evidence that it would have suspended Complainant even in the absence of such protected activity.

[Nuclear & Environmental Digest XI A 2 a]
CAUSAL LINK TO PROTECTED ACTIVITY; LACK OF EVIDENCE THAT SUPERVISOR REACTED NEGATIVELY TO COMPLAINANT'S SAFETY RECOMMENDATION; EXISTENCE OF OTHER REASONS FOR ADVERSE EMPLOYMENT ACTION

In Miller v. Tennessee Valley Authority , 1997-ERA-2 (ARB Sept. 29, 1998), Complainant's security clearance was revoked based on the recommendation of a psychologist who conducted a fitness for duty examination. Earlier, Complainant had engaged in protected activity when she raised concerns about a plan to install a new handprint identification security system. The ARB found, however, that Complainant's supervisor did not dismiss, reject, downplay, or conceal Complainant's opinions about problems with implementation of the new security system, but instead solicited her views for incorporation into his report on the subject, and subsequently met with the Project Manager and others to discuss these concerns (and those of others as well) prior to implementation of the project. Thus, the ARB concluded that the supervisor's actions belied a discriminatory motive. In addition, the ARB noted that there was ample evidence that the supervisor's decision to request a fitness for duty examination was motivated by some troubling statements made by Complainant about workplace violence, and by company policy to refer an employee for a fitness for duty examination when the supervisor questioned the employee's ability to continue to work safely. Finally, the ARB found that the record established that the psychological evaluation and recommended job constraints were entirely bona fide .

XI A 2 a CAUSATION; DOE'S FUNDING OF CONTRACTOR'S LITIGATION EXPENSES

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of a complaint of the allegedly wrongful funding of contractor litigation by the DOE because there was an absence of proof that the decision to fund the litigation was motivated in part by discriminatory animus.

XI.A.2.a. Failure to establish adverse action motivated by protected activity

In Hasan v. System Energy Resources, Inc., 89-ERA- 36 (Sec'y Sept. 23, 1992), aff'd, Hasan v. Reich, No. 92- 5170 (5th Cir. May 4, 1993) (unpublished), the Complainant failed to prove that his release as a temporary, seconded employee (an employee generally brought in to solve specific problems) by the Respondent was motivated by protected activity in contravention of the ERA's anti-discrimination requirements. The Complainant had requested that his assignment be extended to the end of the school year so that his children could finish out the term, but the Respondent declined. For several months prior, the Complainant had made several safety related complaints both to his supervisors and to the NRC. NRC conducted audits at least in part directed at problems pointed out by the Complainant. The Complainant, however, was invited to participate in the audits; his supervisors knew he had concerns about the issues NRC was evaluating, but still assigned to work on solving those problems; he received a positive evaluation from his employer, concurred in by the Respondent (the employer had provided contract employees to the Respondent power plant).

XI.A.2.a. Raising inference is not onerous burden

Complainant's prima facie case in a FWPCA whistleblower proceedings requires a showing sufficient to support an inference of unlawful discrimination. This burden is not onerous. Direct evidence is not required for a finding of causation. The presence or absence of retaliatory motive is provable by circumstantial evidence, even in the event that witnesses testify that they did not perceive such a motive. McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993) (citing cases).

XI.A.2.a. Prima facie case established

Where the respondent denied that his decision to terminate the complainant was related to the complainant's contacts with the NRC was corroborated only by his wife, there was evidence that the respondent was actively looking for the source of information flowing to the NRC and suspected the complainant (who was one of only three employees at the time), and the complainant's termination occurred only two days after the respondent learned that the complainant had given a client a NRC telephone number, the complainant established a prima facie case of retaliation under the ERA. Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 6-7.

XI.A.2.a. Lack of discriminatory motive

Where the complainant conceded in his own deposition testimony a lack of discriminatory motive by the selecting managers involved in the filling of a position that the complainant had applied for, the complainant failed to establish a prima facie case of nonselection based on retaliation for protected activity. Riden v. Tennessee Valley Authority, 89-ERA-49 (Sec'y July 18, 1990).

[Nuclear and Environmental Whistleblower Digest XI A 2 b i]
ERA BURDEN OF PROOF; CIRCUMSTANTIAL EVIDENCE CASE REQUIRES WEIGHING OF ALL RELEVANT EVIDENCE

Subsection 5851(b)(3)(C) provides that "[t]he Secretary may determine that a violation of subsection (a) of this section has occurred only if the complainant has demonstrated that any [ERA Protected Activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." This provision creates the "violation" clause of the ERA whistleblower provisions. The plain meaning of "contributing factor" focuses on whether protected activity did or did not, in fact, contribute at all to an employer's unfavorable employment action. Congress expressly ensured that the causation standard was not defined as meaning an essential ("but for") or significant ("motivating") factor as in other discrimination statutes but rather a lower causation standard of "contributory factor." To prove that a covered employer "violated" the ERA whistleblower protection law, a complainant must establish that: (1) he engaged in activity the ERA protects; (2) the employer subjected him to an unfavorable personnel action; and (3) the protected activity was in fact a "contributing factor in the unfavorable personnel action." 42 U.S.C.A. §; 5851(b)(3)(C). If a complainant proves that a violation occurred, then the focus turns to the relief that should be ordered.

The affirmative defense clause of the ERA whistleblower provisions, 42 U.S.C.A. §; 5851(b)(3)(D), prevents the Secretary from ordering relief for a proven whistleblower violation "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (the same decision defense). The higher standard of proof makes sense where the complainant proved, in fact, that the employer violated the ERA whistleblower provision. As the Eleventh Circuit observed in 1997, Congress deliberately sought to make it tough for violators to escape from paying for their unlawful whistleblower retaliation. But this high standard applies only if the complainant first convinces the ALJ by a preponderance of all the relevant evidence presented that protected activity actually contributed to the employer's unfavorable employment action.

USDOL/OALJ Reporter at 15-16 (footnotes omitted). The Board also stated:

[T]he complainant's burden on the causation element involves a single ultimate issue after an evidentiary hearing in ERA whistleblower cases: whether the complainant proved that his protected activity was a "contributory factor" in the employer's unfavorable employment decision. To answer that question, where the complainant presents his case by circumstantial evidence, ... the ALJ must consider "all" the evidence "as a whole" to determine if the protected activity did or did not "contribute." By "all" of the evidence, we mean all the evidence that is relevant to the question of causation. This requires collecting the complainant's evidence on causation, assessing the weight of each piece, and then determining its collective weight. The same must be done with all of the employer's evidence offered to rebut the complainant's claim of contributory factor. For the complainant to prove contributory factor before the ALJ, all of his circumstantial evidence weighed together against the defendant's countervailing evidence must not only permit the conclusion, but also convince the ALJ, that his protected activity did in fact contribute to the unfavorable personnel action. Because contributory factor permits unlawful retaliatory reasons to co-exist with lawful reasons, a complainant does not need to prove that lawful reasons were pretext. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence. As the United States Supreme Court has stated, "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."

[Nuclear and Environmental Whistleblower Digest XI A 2 b i]
CAUSATION; IN CIRCUMSTANTIAL EVIDENCE CASE, ALJ MUST CONSIDER THE RECORD AS A WHOLE, INCLUDING EVIDENCE OF PRETEXT

In Bobreski v. J. Givoo Consultants, Inc. , ARB No. 09-057, ALJ No. 2008-ERA-3 (ARB June 24, 2011), the ARB described how an ALJ must consider the record as a whole, and not just view the evidence in fragments, when deciding the issue of causation:

When the employee presents a case based on indirect or circumstantial evidence, as in this case, each piece of evidence should be examined with all the other evidence to determine if it supports or detracts from the employee's claim that his protected activity was a contributing factor. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence. Logically, as was done in this case, the ALJ may examine each piece of circumstantial evidence to determine how substantial it is. Then the ALJ must weigh the circumstantial evidence as a whole to properly gauge the context of the adverse action in question. Taken as a whole, the evidence may demonstrate that at least one individual among multiple decision-makers influenced the final decision and acted at least partly because of the employee's protected activity. Conversely, the evidence as a whole may demonstrate that none of the decision-makers knew about the employee's protected activity and thereby break the causation chain between the protected activity and the final adverse action.

Permanently fragmenting circumstantial evidence can distort the greater context. For example, terminating an employee's employment for being late to work obviously could be a valid employment decision considered alone. It becomes suspicious when other employees committed the same infraction and were not fired. The same termination becomes even more suspicious if it followed days after the affected employee disclosed corporate fraud. Suspicion will increase even further if the company had not applied the punctuality rule in years. With the introduction of each piece of circumstantial evidence, the focus remains on the proverbial preponderance gauge to see which way it ultimately moves, toward or away from a conclusion of discrimination. The ultimate conclusion could be wrong if the ALJ either mischaracterizes each piece of evidence or fails to ultimately view them as a whole on the same scale. In the end, the ALJ must look at all of the circumstantial evidence as a whole.

USDOL/OALJ Reporter at 13-14 (footnote omitted). The ARB added that evidence of pretext should also be considered in conjunction with evidence of temporary proximity and circumstantial evidence of causation:

In addition to or in conjunction with temporal proximity evidence and other circumstantial evidence in this case, an employee can prove or buttress a whistleblower claim by proving that the employer's proffered reasons were pretextual (not credible). When the proffered reasons for the adverse action are proven to be false, this evidence coupled with the complainant's evidence that he was qualified, applied, and was rejected suspiciously for the job in question may permit the trier of fact to find discrimination. Pretext can be demonstrated in many ways. One way is by demonstrating that the proffered reasons were conspicuously missing from previous documentation. Shifting explanations could also constitute evidence of pretext. Vague and subjective reasons about personality issues may also suggest that the employer's reasons are pretextual or in reality complaints about whistleblowing. In the end, all pretext evidence should be weighed with all of the circumstantial evidence to determine the issue of causation after an evidentiary hearing.

USDOL/OALJ Reporter at 18-19 (footnotes omitted).

XI.A.2.b.i. 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.

XI. A. 2. b. i. Circumstantial evidence

A complainant may establish causation by showing direct or circumstantial evidence of anti-whistleblower animus on the part of a respondent and its managers. Dillard v. Tennessee Valley Authority, 90-ERA-31 (Sec'y July 21, 1994) (language is from discussion of whether inference of causation is raised for a prima facie case).

XI.A.2.b.i. Direct or circumstantial evidence

A complainant may make the required showing of knowledge (that the respondent was aware of the complainant's protected activities when it took the adverse action) by either direct or circumstantial evidence. Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993).

[Nuclear and Environmental Digest XI A 2 b ii]
TEMPORAL PROXIMITY; CONCURRING MEMBER’S OPINION THAT COMPLAINANT’S BURDEN TO PROVE CAUSATION IS NOT AUTOMATICALLY MET BY RELYING SOLELY ON SHORT TEMPORAL PROXIMITY AND KNOWLEDGE OF PROTECTED ACTIVITY; WHETHER BURDEN MET IS A CASE-BY-CASE DETERMINATION

In Dho-Thomas v. Pacer Energy Marketing , ARB No. 13-051, ALJ Nos. 2012-STA-46, 2012-TSC-1 (ARB May 27, 2015), the ARB summarily affirmed the ALJ’s dismissal of the Complainant’s STAA and TSCA whistleblower complaints. The ALJ had found that the Complainant failed to prove by a preponderance of the evidence that she engaged in protected activity under the STAA, and that she had failed to prove a causal relationship between TSCA-protected activity and her employment termination. Although the ALJ had applied "contributing factor" rather than "motivating factor" analysis to the TSCA causation issue, it was harmless error because a complainant who cannot might the lesser "contributing factor" test cannot met the heightened causation standard under the "motivating factor" test. One member of the panel concurred, stating that the majority’s ruling makes it clear "that, whether the causation standard is ‘motivating factor,’ as in this case or ‘contributing factor,’ a complainant does not automatically prove causation by relying solely on timing (short temporal proximity) and knowledge of protected activity; it is a case-by-case determination dependent on the facts of the case." USDOL/OALJ Reporter at 5 (footnote omitted) (emphasis as in original).

[Nuclear and Environmental Digest XI A 2 b ii]
CAUSATION; COMPLAINANT'S EMPLOYMENT FOUND TO HAVE BEEN TERMINATED DUE TO END OF COMPLAINANT'S ELIBILITY FOR EXTENDED ILLNESS STATUS RATHER THAN PROTECTED ACTIVITY; TEMPORAL PROXIMITY FOUND NOT TO BE PERSUASIVE FACTOR WHERE INITIATION OF TERMINATION PROCEEDING PRECEDED PROTECTED ACTIVITY AND WHERE SEVERAL INTERVENING FACTORS DIMINISHED INFERENCE BASED ON THAT TEMPORAL PROXIMITY; CONCURRING MEMBER CLARIFIES HOW INTERVENING EVENTS RELATE TO TEMPORAL PROXIMITY ANALYSIS

In Kuehu v. United Airlines , ARB No. 12-074, ALJ No. 2010-CAA-7 (ARB Feb. 10, 2014), the Complainant was a Reservations Sales and Service Representative who worked in the Respondent's reservation call center in the subbasement of a building within the Honolulu International Airport. The Complainant and many other employees frequently complained internally about environmental conditions at the call center. The Complainant also made numerous complaints to state and federal agencies. The Complainant was placed on extended illness status (EIS) due to poor health. The Complainant alleged that she engaged in numerous instances of protected activity following her placement on EIS status and prior to her termination. Under a Collective Bargaining Agreement (CBA), an employee could be on EIS status for a maximum of three years, and termination of employment was thereafter automatic. Near the end of her three year EIS term, the Complainant was notified that her employment would be automatically terminated. The Complainant got a physician to release her for work and the Respondent extended her EIS. The Complainant, however, declined the Respondent's arrangements to accommodate her return to work. The Respondent again extended the EIS to permit the Complainant to attempt to obtain employment in another location with the Respondent. The Complainant applied for a position but was not selected. An outside contractor administered the selection process. The Complainant's employment was then terminated. The Complainant filed a whistleblower complaint under the CAA, the SDWA, the FWPCA, and the SWDA. After conducting a hearing, the ALJ dismissed the complaint.

On appeal, the ARB assumed arguendo that the Complainant engaged in protected activity under the environmental acts, but found that substantial evidence supported the ALJ's finding the Complainant had not shown by a preponderance of the evidence that the protected activity caused or was a motivating factor for the adverse action. The CBA provided a maximum period for EIS with automatic termination thereafter. The Defendant nonetheless extended the EIS twice, and only terminated the Complainant's employment after she was notified that she had not been selected for the other position.

The ALJ had acknowledged that there was temporal proximity between a letter the Complainant had sent to the EPA and the notice of termination, creating the possibility of an inference of causation. The ARB agreed with the ALJ, however, that the termination process under the EIS had commenced well before the Complainant sent the letter. The ARB also agreed with the ALJ that several intervening events served to diminish any possible inference of causation: the Complainant's rejection of an offer to return to work with accommodations; the Complainant's unsuccessful application for another position through a contractor unaware of her indoor environmental quality complaints; the Defendant's extension of the EIS; and the fact that the termination did not occur until the Complainant was unable to obtain the alternate job.

One member of the Board wrote a concurring opinion because he has found that the concept of "intervening cause" is frequently misapplied. The member wrote: "In determining whether an event caused an unfavorable employment action in environmental whistleblower cases, the question is whether the complainant persuaded the ALJ that protected activity was a substantial factor. If protected activity substantially contributed to setting in motion the unfavorable action, I believe liability exits even in the presence of other contributing independent events, but the amount of damages might be partially or completely reduced. Independent intervening events do not negate or change the temporal distance between two events, but they can remove the persuasiveness of the temporal proximity as circumstantial evidence of unlawful retaliation. " USDOL/OALJ Reporter at 7-8 (footnotes omitted; one footnote indicated that ERA cases are treated differently, probably meaning that in ERA cases the complainant only needs to establish that protected activity was a contributing cause rather than a motivating factor as with the other environmental acts). In the instant case, the ALJ had characterized the intervening events as " negating" any causation that could have been inferred by the temporal proximity. The concurring member found this statement harmless because in the end, the ALJ found that he was persuaded that the events occurring after the Complainant sent the letter to the EPA, were the substantial factors in the termination of employment and not the preceding protected activity.

[Nuclear and Environmental Digest XI A 2 b ii]
CAUSATION; TEMPORAL PROXIMITY BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION NOT NECESSARILY DISPOSITIVE

In Caldwell v. EG&G Defense Materials, Inc. , ARB No. 05-101, ALJ No. 2003-SDW-1 (ARB Oct. 31, 2008), the Complainant was fired two days after the Respondent received notice of his filing of a whistleblower complaint with OSHA. The ARB stated that "[w]hile a temporal connection between protected activity and an adverse action may support an inference of retaliation, the inference is not necessarily dispositive." Reviewing the facts of the case, the ARB found that the record established legitimate reasons for the Respondent's actions in suspending and ultimately terminating the Complainant's employment, and that the Complainant had not proven that those reasons were pretext for discrimination or retaliation based on protected activity.

[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
TEMPORAL PROXIMITY; MAY BE SUFFICIENT TO CARRY COMPLAINANT'S BURDEN OF PROOF WHERE EMPLOYER'S EXPLANATIONS FOR ADVERSE ACTION ARE NOT CREDIBLE

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB found that temporal proximity between the Complainant's protected activity and the adverse employment action were sufficient to meet the Complainant's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action where the Employer's explanations of legitimate reasons for the adverse action where not credible. A significant factor in the ARB's view was the Respondent's unwillingness to permit the Complainant to complete his performance improvement plan; the ARB found that unwillingness to evidence discriminatory motive. Another factor was the Respondent's greater concern with QC inspectors' performance of an allegedly unauthorized test of a crane than with the danger posed by the crane. The Complainant was a QC manager. He and other QC inspectors were held responsible for the allegedly unauthorized test even though several management-level employees were present at an initial test and approved of it. Although the Complainant had not behaved well at a meeting, there was testimony that managers had yelled, screamed, used profanity and intimidation at meetings, that other employees had become upset and used profanity at meetings, and that the Complainant was dealt with more harshly than other employees.

[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
CAUSATION; PROXIMITY IN TIME; INFERENCE NOT AVAILABLE FOR INITIATION OF POSITION REVIEW THAT ULTIMATELY LEAD TO COMPLAINANT'S LAY OFF WHERE RECORD DID NOT SHOW BASIS TO CONCLUDE THAT SUCH A RESULT WAS INEVITABLE

[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
CAUSATION; PROXIMITY; DISTANCE IN TIME; INTERVENING EVENTS

In Keener v. Duke Energy Corp. , ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006), PDF | HTM a 13 month gap between the time of the Complainant's protected activity and his ultimate discharge, together with the confluence of several independent intervening events, was sufficient to break any causal connection. The Board discounted the start of a position review as sufficient to raise a causal connection because there was no basis in the record for finding that the subsequent lay off was an inevitable consequence of the review, and because the review occurred more than 180 days prior to the filing of the complaint.

XI.A.2.b.ii. Six month interval

Six months between an initial internal complaint and a job transfer was found in Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994) to constitute a sufficient temporal nexus between protected activity and adverse action to raise the inference of causation.

[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
TEMPORAL PROXIMITY; INFERENCE OF CAUSAL RELATIONSHIP WITH ADVERSE ACTION PRECLUDED WHERE INTERVENING EVENT

In Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant whose history as a whistleblower was well known and who had issued several non-conforming reports (which he characterized as "imminent threats) while providing electrical systems inspection services on the Trans Alaska Pipeline System, requested reassignment after Alyeska changed the standards to be used to conduct inspections. Complainant was placed on inactive status, eligible for reassignment. The ALJ found that the closeness in time between Complainant's protected activity and the layoff was compelling evidence of causation. The ARB disagreed:

Temporal proximity may be sufficient to raise an inference of causation in an environmental whistleblower case. See, e.g., Couty v. Dole , 886 F.2d 147, 148 (8th Cir. 1989). When two events are closely related in time it is often logical to infer that the first event ( e.g. protected activity) caused the last ( e.g. adverse action). However, under certain circumstances even adverse action following close on the heels of protected activity may not give rise to an inference of causation. Thus, for example, where the protected activity and the adverse action are separated by an intervening event that independently could have caused the adverse action, the inference of causation is compromised. Because the intervening event reasonably could have caused the adverse action, there no longer is a logical reason to infer a causal relationship between the activity and the adverse action. Of course, other evidence may establish the link between the two despite the intervening event. As the court held in Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 279 (3d Cir. 2000), "we have ruled differently on this issue [raising an inference of retaliatory motive based on temporal proximity] . . . depending, of course, on how proximate the events actually were, and the context in which the issue came before us ." (Emphasis added.)
Here, it is apparent that Tracanna's request for removal from his inspector position on the AKOSH Project was an intervening event of sufficient weight to preclude any inference of causation which otherwise would have been drawn from the nearness of Tracanna's protected activity to his layoff. Clearly, once Tracanna had requested to be removed from his position, ASIS' options were extremely limited. Either ASIS could have placed Tracanna in another position, or it could have laid him off. However, in light of Tracanna's intervening request to be removed from the AKOSH Project, it cannot be assumed that ASIS's decision to place him on layoff status was causally related to his protected activity and retaliatory.

Slip op. at 7-8 (footnote omitted).

[Nuclear & Environmental Digest XI A 2 b ii]
TEMPORAL PROXIMITY

In Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the temporal proximity of the adverse action and Complainant's protected activity, together with other circumstantial evidence was sufficient to support a finding that Respondent engaged in a coverup of safety hazards to facilitate fuel load and start up at its nuclear facility, with the coverup including removal of Complainant from a position where he could continue to raise safety concerns that threatened to delay the start up of the facility.

Compare Thompson v. Houston Lighting & Power Co. , ARB No. 98-101, ALJ No. 1996-ERA-34 (ARB Mar. 30, 2001) (temporary proximity only part of the picture; ALJ properly weighs all the evidence in regard to retaliatory animus; in case sub judice temporal proximity was not enough to establish such animus).

[N/E Digest XI A 2 b ii]
CAUSATION; PROXIMITY IN TIME

"Proximity in time between protected activity and an adverse action is solid evidence of causation." White v. The Osage Tribal Council , 95-SDW-1, slip op. at 4 (ARB Aug. 8, 1997).

[N/E Digest XI A 2 b ii]
TEMPORAL PROXIMITY TOO DISTANT

The passage of three years from the time of Complainant's protected activity and alleged adverse action, with evidence of lack of animus on the part of Respondents after the protected activity (Complainant had been hired on five different occasions subsequent to the protected activity), convinced the Board in Bonanno v. Stone & Webster Engineering Corp. , 95-ERA-54 and 96-ERA-7 (ARB Dec. 12, 1996), that there was no causal connection between the protected activity and the alleged adverse actions. See Shusterman v. EBASCO Services, Inc. , 87-ERA-27, slip op. at 8-9 (Sec'y Jan. 6, 1992), aff'd mem., Shusterman v. Secretary of Labor , No. 92-4029 (2d Cir. Sept. 24, 1992) (four-year interval, without credible evidence to contrary, establishes absence of causal connection between protected activity and adverse action).

TEMPORAL PROXIMITY; ONE YEAR TOO DISTANT; INTERVENING LEGITIMATE REASON FOR ADVERSE EMPLOYMENT ACTION
[N/E Digest XI A 2 b ii and iii]

Where nearly a year had elapsed between Complainant's filing of several reports under a program encouraged by Respondent for employees to identify areas of concern, and the decision to terminate Complainant's employment, the evidence was insufficient to establish that the termination decision was inspired by the protected activity.

In addition, the Board indicated that the existence of an intervening, legitimate reason for terminating Complainant's employment -- his attendance at a conference contrary to express instruction (his second violation of company policy in this respect) -- was the more important factor.

Evans v. Washington Public Power Supply System , 95-ERA-52 (ARB July 30, 1996), citing Williams v. Southern Coaches, Inc. , 94-STA-44 (Sec'y Sept. 11, 1995) (legitimate reason for termination occurring after protected activity may negate any temporal inference of causation).

CAUSATION; TEMPORAL PROXIMITY, THOUGH SUFFICIENT ESTABLISH PRIMA FACIE CASE, IS ONLY ONE FACTOR IN DECIDING ULTIMATE QUESTION
[N/E Digest XI A 2 b ii]

In Jackson v. Ketchikan Pulp Co. , 93-WPC-7 and 8 (Sec'y Mar. 4, 1996), one Complainant excepted to the ALJ's conclusion that he was fired for being out of his work area rather than his protected activity where there was temporal proximity between the protected activity and the discharge.

The Secretary pointed out that temporal proximity may be sufficient to establish a prima facie case, but that it is only one factor to weigh in deciding the ultimate question of whether a complainant has proved by a preponderance of the evidence that retaliation was a motivating factor in the adverse action.

In Jackson , the Secretary noted that the ALJ had carefully weighed the evidence, but because there was some circumstantial evidence suggesting that retaliation may have in part motivated the Respondent, assumed as did the ALJ in an alternative ruling, that retaliation was a motivating factor. Nonetheless, the record supported the ALJ's conclusion that the Respondent would have fired the Complainant even if he had not engaged in protected activity.

INFERENCE OF CAUSATION; PROXIMITY IN TIME ALONE MAY NOT BE SUFFICIENT TO RAISE INFERENCE IN NON-DISCHARGE CIRCUMSTANCE
[N/E Digest XI A 2 b ii]

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), the court disagreed with the concurring judge's suggestion that proximity in time between the protected activity and the adverse employment action is, by itself, sufficient to establish the inference of causal nexus element of a prima facie case. The court distinguished between instances in which a discharge followed soon after the protected activity, in which case proximity in time justifies the inference of retaliatory discrimination, and instances in which the complainant simply was not rehired following the expiration of an employment contract, in which case "something more than temporal proximity" must be shown. Bartlik , 1996 U.S. App. LEXIS 394 at *10 n.7. The court agreed with the concurring judge that making a prima facie case is not onerous. Nonetheless, the court indicated that it is not justifiable to conclude that "anyone hired to identify safety problems who does his job and does identify problems, whose contract is not renewed would make a prima facie of discriminatory retaliation." Bartlik , 1996 U.S. App. LEXIS 394 at *10 n.7.

Editor's note: Compare Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), in which the Secretary found that the ALJ properly concluded that the temporal proximity between the Complainant's protected activity which began in August 1992 and continued through the time of the Respondent's refusal to initiate formal consideration of the Complainant for promotion in February 1993 was sufficient to support an inference of a causal link between the protected activity and the adverse action.

INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; EXTENDED PERIOD; PRIMA FACIE CASE THEORY
[N/E Digest XI A 2 b ii]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary held a gap of almost four years between alleged protected activity and adverse employment action was too extended a period to be considered temporally proximate. The Secretary noted that "the purpose of all of the elements of a prima facie case in a retaliation case is to permit, under specified circumstances, a finding of retaliation, even in the absence of direct evidence. A finding that adverse action closely followed protected activity gives rise to a reasonable presumption that the protected activity caused the adverse action. However, if the adverse action is distant in time from the protected activity, doubt arises as to whether the alleged retaliator could have still been acting out of retaliatory motives." Slip op. At 86-87 (citations omitted).

Editor s note : The Secretary characterized his prior rulings as being that "periods of up to several months between an incident of protected activity and adverse action were short enough to give rise to an inference that the protected activity was the likely cause of the adverse action." Slip op. at 85 (citations omitted). It may be noted, however, that the Secretary has considered a period of twelve months to be sufficiently proximate to raise the inference, although at eighteen months, the gap begins to militate against using temporal proximity alone to raise an inference of causation. See decisions cited in the Slip op. at 85-86.

XI.A.2.b.ii. Proximate timing of adverse action

In Crosier v. Portland General Electric Co., 91- ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that a three or four month gap between Complainant's protected activity (complaint about number of hours schedulers worked) and his discharge was sufficient to raise the inference of causation.

XI.A.2.b.ii. Sequence of events viewed in context of events as a whole

In Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y Oct. 6, 1992), the Secretary indicated that although a sequence of events occurring over a relatively short time would normally support an inference of causation, it is necessary to view the events as a whole. Hence, she would not have drawn the inference made by the ALJ that the fact that the complainant was terminated shortly after making his environmental complaints known and taking photographs of alleged environmental hazards that his "protected activity may have played a role in his dismissal." The Secretary declined to draw this inference because the complainant had made his contact with the EPA known earlier and had engaged in a stream of obscene invective immediately prior to being asked to leave the property.

XI.A.2.b.ii. Timing of discipline

Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).

In 1986 petitioner Richard Couty was employed within the meaning of section 5851 by Arkansas Power and Light Company (AP&L) as a quality control inspector at a steam-electric nuclear generating facility in Russellville, Arkansas. Petitioner was discharged by AP&L, ostensibly on the ground of unprofessional behavior, but he believed that he had been discharged because he had engaged in activity protected by Section 5851. He threatened to bring various safety and quality- control complaints to the attention of the Nuclear Regulatory Commission besides notifying his supervisors. The ALJ's Recommended Decision and Order determined that the evidence did not support an inference of retaliatory motivation on AP&L's part and therefore, concluded that petitioner failed to establish a prima facie case of retaliatory discharge under section 5851(a). In the alternative, the ALJ determined that even if it could be found that petitioner had established a prima facie case, AP&L, nevertheless, should prevail because petitioner would have been discharged regardless of his having engaged in protected activity. In the Secretary's Final Decision and Order she adopted only the ALJ's finding that petitioner had not established a prima facie case of retaliatory discharge and dismissed the complaint. Petitioner sought review in the Eighth Circuit pursuant to section 5851(c). Petitioner was discharged roughly thirty days after he engaged in protected activity. That temporal proximity was held sufficient as a matter of law to establish the final required element in a prima facie case of retaliatory discharge which is that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive. See Keys v. Lutheran Family and Children's Servs. of Missouri, 668 F.2d 356, 358 (8th Cir. 1981) (retaliatory discharge claim involving section 704(a) of Title VII, 42 U.S.C. §; 2000e-3(a)); Womack v. Munson, 619 F.2d 1292, 1296 & n.6 (8th Cir. 1980) (same), cert. denied, 450 U.S. 979, 101 S. Ct. 1513 (1981). Accord Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986); Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985).

XI.A.2.b.ii. Complaint made after firing

In Bailey v. System Energy Resources, Inc., 89-ERA- 31, 32 (Sec'y July 16, 1993), the Complainants, junior decon technicians, raised complaints about a change in their work schedule that required them to assist in smearing and frisking (decontamination procedures) of tools. One evening shortly thereafter, Complainants were observed lying on the floor, and later that evening the plant manager revoked their plant access privileges, having concluded that they had been sleeping. The next morning, Respondent's site director decided to fire the Complainants. Later that day, one of the Complainants contacted the Nuclear Regulatory Commission to inquire about decon technicians smearing and frisking tools. Complainants did not learn that they had been fired until after the contact with NRC. Complainants contended that the alleged sleeping incident was an excuse get rid of them because they were raising safety concerns.

The Secretary agreed with the ALJ that Complainants failed to prove they were engaged in protected activity by making internal complaints about safety matters (i.e., they did not raise, or were not perceived as raising, internal safety complaints -- they were complaining about schedule and duties). In addition, the telephone call to NRC was made after Complainants had been denied site clearance, and therefore the inference that protected activity, much less the likely motive, for the adverse action could not be raised. Finally, even if a prima facie case had been established, the adverse action was motivated by a legitimate, nondiscriminatory reason -- sleeping on the job.

XI.A.2.b.ii. Two months raises inference of causation

In Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993), a period of two months was found to be sufficiently brief to raise the inference of causation under the circumstances of the case. [Complainant, however, failed to establish other elements of prima facie case, such as Respondent's knowledge of protected activity].

XI. A. 2. b. ii. Proximate timing of adverse action

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), six months between the protected activity and the Complainant's discharge established sufficient temporal proximity to raise the inference of retaliatory motive.

XI.A.2.b.ii. Adverse action closely following protected activity

Where the decision to transfer a complainant closely follows his protected activity, an inference of causation is raised. See Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

XI. A. 2. b. ii. Proximate timing of adverse action; circumstantial evidence

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), sufficient temporal proximity of the protected activity and the adverse action to raise the inference of causation was found where about one year elapsed between the time Complainant's supervisor learned of Complainant's safety concerns regarding procedures and equipment used for tracking valve testing, and where the Complainant's test certifications were suspended about three weeks after she made internal complaints about using non-approved criteria for certain testing.

XI.A.2.b.ii. Temporal proximity

Where an adverse action closely follows protected activity, the inference of causation may be sufficiently established. See, e.g., Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985). Conversely, where a significant period of time elapses between the protected activity and the adverse action, the absence of a causal connection between the protected activity and the adverse action may be sufficiently established. Burrus v. United Telephone co., of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 19xx), cert. denied, 459 U.S. 1071 (1982) (three-year interval established absence of causation); Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992) (four- year interval between protected activity and discharge establishes the absence of a causal connection in the absence of credible evidence to the contrary).

XI.A.2.b.ii. Causation; temporal proximity

A causal connection between the protected activity and the adverse employment action may be established by showing that the employer was aware of the protected activity and that adverse action followed closely thereafter. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldridge, 759 F.2d 80, 86 and n.6 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982). Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

XI.A.2.b.ii. Temporal proximity

Close temporal proximity may be legally sufficient to establish the "causation" element of a prima facie case. Conaway v. Valvoline Instant Oil Change, Inc., 91- SWD-4 (Sec'y Jan. 5, 1993).

To the same effect: Helmstetter v. Pacific Gas & Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993), slip op. at 9-10.

XI.A.2.b.ii. Temporal proximity

In making a prima facie case, temporal proximity between the protected activities and the adverse action may be sufficient to establish the inference that the protected activity was the likely motivation for the adverse action. Thus, where Complainant brought concerns about the validity of certain studies to management's attention in a series of meetings from 1987 through March 28, 1989, and Complainant was discharged effective April 7, 1989, the short time between the protected activities and the discharge was sufficient to raise the inference that the protected activities likely motivated his discharge. Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).

XI.A.2.b.ii. Proximate timing

Where the complainant was terminated two days after his employer learned that he had given a client a NRC telephone number, the sequence of events occurring over a relative short time period supported an inference of causation. Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 7.

XI. A. 2. b. ii. Proximate timing of adverse action

In Dillard v. Tennessee Valley Authority, 90-ERA-31 (Sec'y July 21, 1994), the Secretary noted that proximity in time between the complainant's protected activities and the respondent's adverse actions may be sufficient to raise the inference of causation. In the instant proceeding, however, a year and a half passed between the last protected activity and the adverse action, which mitigated against a finding that temporal proximity alone raised the inference of causation.

XI. A. 2. b. ii. Proximate timing of adverse action; circumstantial evidence

XI.A.2.b.ii. Time lag militates against inference of retaliation

In Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. at 8, the Secretary concluded that the time lag between the complainant's expressions of concern about working with a co-worker whose practices allegedly presented a safety hazard and the complainant's firing (March 1991 - July 1991), militated against an inference of retaliation in response to the protected activity. The respondent had promised never to assign the complainant to work with that co- worker, and the co-worker had been fired in June 1991 for three separate safety violations.

XI. A. 2. b. ii. Proximate timing of adverse action

XI. A. 2. b. ii. Proximate timing of adverse action

XI.A.2.b.ii. Temporal proximity between protected activity and adverse action; six month gap is sufficient proximity

In making a prima facie case, temporal proximity between the protected activities and the adverse action may be sufficient to establish the inference that the protected activity was the motivation for the adverse action. Where about six months passed between a complainant's submission of employee suggestions and the issuance of a disciplinary letter, the temporal proximity was enough to raise an inference of discrimination and to establish a prima facie case. See Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op. at 11-12, appeal docketed, No. 92-4576 (5th Cir. June 1, 1992) (causation established where seven or eight months elapsed between protected activity and adverse action). Helmstetter v. Pacific Gas & Electric Co., 86- SWD-2 (Sec'y Sept. 9, 1992).

XI.A.2.b.ii. Two weeks

Where the adverse action occurred less than two weeks after the Complainant engaged in protected activity, the inference could be drawn that the protected activity was the reason for the adverse action. Thompson v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993).

XI.A.2.b.ii. Two months sufficient to raise inference of causation

Where less than two months elapsed between the time the complainant questioned his superiors about safety procedures and his layoff, the temporal proximity between the protected activity and the adverse action was sufficient to raise an inference of causation.

Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 12.

XI A 2 b ii Ten-month lapse

A ten-month lapse between the protected activity and the adverse action may be sufficient to raise an inference for a prima facie case under a Part 24 whistleblower complaint. See Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995).

XI.A.2.b.ii. Eight months may be sufficient temporal proximity

In Seda v. Wheat Ridge Sanitation District, 91-WPC- 1, 2 and 3 (Sec'y Sept. 13, 1994), the ALJ held that because Complainants were laid off some eight months after their protected activity, that adverse action "was not in close proximity to the protected activity," citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

The Secretary, noting that this ruling did not affect the outcome in this case, observed that in some circumstances an adverse action following protected activity by eight months can give rise to an inference of retaliation. Compare Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op. at 11-12, rev'd on other grounds sub nom Ebasco Constructors, Inc. v. Martin , No. 92-4576 (5th Cir. Feb. 19, 1993) (seven to eight months between last protected activity and adverse actions), with Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th Cir. 1982), cert. denied 459 U.S. 1071 (1982) (three year gap between protected activity and adverse action too long to raise inference of retaliation).

XI.A.2.b.ii. Six month interval

XI.A.2.b.ii. Temporal remoteness may refute causal connection

Temporal remoteness of the protected activity to the adverse employment action may refute a causal connection. Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993) (Complainant's principal auditing work occurred in 1982 and 1983; the adverse employment action took place in 1985; Complainant had performed no nuclear auditing work during the year which preceded the evaluation).

XI.A.2.b.ii. Significant gap between protected activity and adverse action

In determining if a prima facie case has been established, temporal proximity between the protected activity and the adverse action may be sufficient to support the inference that the protected activity was the motivation for the adverse action. Nichols v. Bechtel Constr., Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 12. Where, however, a significant period of time elapses between the time at which the respondent is aware of the protected activity and the time of the adverse action, the absence of a causal connection between the protected activity and the adverse action may be sufficiently established. Shusterman v. Ebasco Serv., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992), slip op. at 8-9.

Thus, where the Chief Security Coordinator was aware of the complainant's protected activity in May 1984, but no adverse action was taken until October 1984, and considering that the individual who initiated the adverse action, a modification superintendent, was not at that time aware that the complainant had engaged in protected activity, the evidence was insufficient to raise the inference that protected activity was the likely motive for the adverse action, and the complainant failed to present a prima facie case. Young v. Philadelphia Electric Company, 87-ERA-11, 36, 88-ERA-1 (Sec'y Dec. 18, 1992).

XI.A.2.b.ii. Significant lapse of time between protected activity and adverse action

Where a significant period of time elapses between the time at which the respondent is aware of or receives notice of the protected activity and the time of the adverse action, the absence of a causal connection between the protected activity and the adverse action may be sufficiently established. Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993) (time interval between November 1984 protected activity and adverse action in August 1985 belied a causal link; nevertheless, in Bassett , other temporarily close acts did establish the prima facie case).

XI.A.2.b.ii. Proximate timing

The proximate timing of the conduct vis-a-vis the adverse action may tend to support an inference of causation. Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991) (noting that a supervisor's attitude toward and handling of complainers supported the timing as evidence raising the inference of causation).

XI.A.2.b.ii. Contact with EPA after termination

Where the complainant's involvement with the EPA occurred after he was terminated, and his termination was for unsatisfactory performance, the complainant failed to establish a prima facie case.

Sherrod v. AAA Tire & Wheel, 85-CAA-3 (Sec'y Nov. 23, 1987).

XI.A.2.b.ii. and iii. Circumstances supporting inference

Temporal proximity between the protected activity and the adverse employment action is legally sufficient to establish the "causation" element of a prima facie case. Additional evidence may support the inference, such as the respondent's barring of inspectors, chastising the complainant, and direct evidence of retaliatory motive.

Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992).

XI.A.2.b.iii. Circumstances militating against finding of retaliatory intent

In Devine v. Buncombe County Dept. of Engineering Services, 87-SWD-1 (ALJ June 19, 1987), aff'd (Sec'y June 28, 1990), a pay restructuring plan was not mechanically applied only in regard to the Complainant and a co- worker who was in the same step and grade as the Complainant prior to the restructuring but who got an extra step because of length of service and good work. This fact coupled with the fact that the Complainant had been listed as a witness in an SWD proceeding involving another employee, if considered alone, would have permitted an inference of retaliatory intent. Other circumstances, however, militated against that inference. For example, another listed witness in the prior proceeding was appointed supervisor, with a substantial increase in pay. Further, the record as a whole indicated that the reason for the disparate treatment for the employee formerly at the Complainant's grade and step was the supervisor's feeling that he was a meritorious employee rather than animus toward the Complainant.

[Nuclear & Environmental Whistleblower Digest XI A 2 b iii]
CAUSATION; NOTIFICATION OF "AT RISK" STATUS PRIOR TO DISCHARGE BUT BEFORE PROTECTED ACTIVITY

In Tennessee Valley Authority v. U.S. Secretary of Labor , 2003 WL 932433 (6th Cir. Mar. 6, 2003) (unpublished) (case below Overall v. Tennessee Valley Authority , ARB Nos. 98 111, 98 128, ALJ No. 1997 ERA 53), Respondent asserted on appeal that DOL had erred in finding a causal connection between Complainant's protected activity and the adverse employment action because Respondent had provided notification to Complainant of his potential at risk status prior to the protected activity. The court upheld DOL's rejection of this assertion because the notification only stated that Complainant "may" be transferred, which was plainly not indicative of a final decision. The court found that "DOL reasonably concluded from substantial evidence that TVA made the decision to remove [Complainant] ... only after [engaged in the protected activity].

[Nuclear & Environmental Digest XI A 2 b iii]
PRIMA FACIE CASE; INFERENCE OF CASUAL RELATIONSHIP; LACK OF RELEVANCY OF EVIDENCE OF COMPLAINANT'S ALTERNATIVE THEORIES FOR REASON FOR ADVERSE ACTION

In Paynes v. Gulf States Utilities Co. , ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the ALJ had concluded that Complainant had failed to establish the fourth element of a prima facie case sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action where Complainant had first asserted a theory of race discrimination with the EEOC, and later pursued a contract claim in a union arbitration proceeding. The ALJ concluded that the Complainant was merely covering all his bases when he added the ERA employee protection complaint.

The ARB found that the filing of the EEOC complaint and the union arbitration based on the same set of facts giving rise the ERA complaint was "simply not relevant" to this element of the prima facie case.

The ARB observed that, since the case had been fully tried on the merits, the ALJ's analysis of whether a prima facie case had been presented lacked utility. Nevertheless, the ARB stated that it was compelled to respond and clarify the ALJ's error as a matter of law.

TEMPORAL PROXIMITY; ONE YEAR TOO DISTANT; INTERVENING LEGITIMATE REASON FOR ADVERSE EMPLOYMENT ACTION
[N/E Digest XI A 2 b ii and iii]

XI A 2 b iii Error to consider respondent's proffered reasons for termination at prima facie case stage

In Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995), the Secretary held that it was error for the ALJ to consider the Respondent's proffered reasons for terminating the employment of the Complainant in determining whether a prima facie case had been established. The Secretary wrote: "An employer's reason for the adverse action goes not to the causal element of a prima facie case but to the ultimate question of whether Respondent retaliated against Complainant because he engaged in protected activity." Slip op. at 8-9 n. 5.

XI A 2 b iii Draft memoranda as evidence of motive

In Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), draft disciplinary memoranda, which addressed Complainant's protected activity, but which were never transmitted to her or discussed with her, were found by the Secretary to suggest Respondent's displeasure with her whistleblowing. The Secretary found that the exhibits documented an ongoing, unsuccessful effort by Respondent to find a legitimate reason for disciplining Complainant when the real reason appears to have been her whistleblowing. This evidence showed causation for purposes of Complainant's prima facie case.

XI.A.2.b.iii. Evidence tending to demonstrate causation

The Sixth Circuit in The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S. App. LEXIS 8280), affirmed the Secretary's finding that the Complainant had met here burden in the prima facie case of establishing a causal link. The evidence tended to demonstrate (1) that the Complainant had performed very well in a temporary promotion and had been promised a permanent promotion, (2) that her relationship with a superior began to deteriorate shortly after she made contacts with an NRC inspector, (3) that the decision to rescind her promotion was made two weeks after a superior had overhead the NRC inspector disclose the Complainant's whistleblowing, and (4) that the decision to rescind the promotion was made while the Complainant's immediate supervisor was on vacation, and was implemented over that supervisor's vigorous objection.

XI.A.2.b.iii. Timing and recommendation of co- worker

In Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906), the Complainant (the Respondent's Chief of Laboratory and Stream Pollution Control) was highly critical of the Respondent's user charge verification system, and prepared several memoranda to Respondent's commissioners alleging that the system vioated the Clean Air Act.

The commissioners conducted a hearing in which they heard the Complainant's position, but which resulted in their finding the position to be without merit. The Complainant's had had a volatile relationship with the Chief of Industrial Waste from the outset, and the criticism of the system caused that person to recommended termination of the Complainant's employment because his behavior jeoparidzed the Respondent's credibility with the its customers. A superior arranged for mediation between the two Chiefs by two managers. About six months later, those managers recommended to the Commissioners elimination of the Complainant's position based on a corporate reorganization. The Complainant was terminated, purportedly based strictly on fiscal needs and his lack of seniority. Evidence in the record, however, supported a finding that the Complainant's apparent lack of interpersonal skills contributed to his selection for termination.

The court found that substantial evidence supported the Secretary's conclusion that the Complainant's complaint directly prompted his termination, and was the dominant reason for the employment decision, even though there may have been other reasons that played a role -- the record showed that the Complainant's complaints jeopardized the entire user charge system and compromized customer credibility. The Chief of Industrial Waste directly recommended a termination on this basis, and the Complainant's termination was only six months later.

XI.A.2.b.iii. Evidence of pattern of retaliation

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.

XI.A.2.b.iii. Timing and recommendation of co- worker

XI A 2 b iii Consideration of factors other than proximity in time

In McDonald v. University of Missouri, 90-ERA-59 (Sec'y Mar. 21, 1995), the Secretary determined that the proximity in time between the protected activity and the adverse employment action was sufficient to raise an inference of causation for a prima facie case in a case involved the discharge of a Postdoctoral Associate who had complained about poor lab procedures by graduate students. The Secretary also considered additional evidence in this regard. Specifically, the divisional director testified that it was not the ERA complaints themselves that led to the Complainant's discharge, but rather the way the Complainant handled the complaints; the head of the lab admitted that the Complainant's safety concerns played a role in disrupting the lab; another professor testified that she knew about problems in the lab Complainant was employed before the Complainant even arrived; less than one month before Complainant reported violations, the lab head had written a letter of recommendation that contradicted the later assertion that the Complainant's handling of complaints disrupted the lab.

XI.A.2.b.iii. Inference of causation; prima facie case

The fact that the complainant's supervisor told the complainant at a meeting to discuss the complainant's conduct before a vendor that making more suggestions such as one the complainant had made to treat used batteries as hazardous waste would not further his career supported an inference of discrimination. Helmstetter v. Pacific Gas & Electric Co., 86- SWD-2 (Sec'y Sept. 9, 1992).

XI.A.2.b.iii. Secretary took into consideration in prima facie case circumstances that another person who engaged in protected activity was promoted and that Complainant's testimony before the NRC was confidential

In Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993), the fact that at least one of the persons who engaged in protected activity together with Complainant was selected to become a supervisor during a company reorganization was considered by the Secretary in determining whether the inference of intentional discrimination element of a prima facie case was raised. Complainant was contending that he was denied a promotion in the reorganization because of his participation in an audit and testimony before the NRC the year before.

The Secretary also took into consideration the number of persons who testified before the NRC (about 40), that the testimony was completely confidential, and that the person who made the decision not to promote Complainant credibly testified that he was not aware of the substance of Complainant's testimony before the NRC.

[Editor's note: Secretary ultimately found prima facie case established for another reason]

XI.A.2.b.iii. Evidence of pattern of retaliation

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.

XI.A.2.b.iii. Circumstances overcoming temporal proximity circumstance

In Hick v. Western Concrete Structures, Inc., 82- ERA-11 (Sec'y June 5, 1984), the Secretary found that although there was a close temporal connection between Complainant's protected activity of contacting the Arizona Public Service Agency (APS) and his discharge, Complainant failed to met the element of the prima facie case of a causal link between his protected activity and his termination, and that the burden did not shift to Respondent to articulate a legitimate, nondiscriminatory reason for the firing.

This conclusion was based on evidence that there was no climate of discouraging contact with APS; that the person about whom Complainant had complained to APS, the production superintendent (on the ground that he was "production oriented" and going "to cut corners any way he could") had recommended Complainant for a position; Complainant's successor was not pressured in regard the production superintended or told not to work freely with APS; that Complainant's new supervisor wanted stricter quality control which he felt he could not get with Complainant and specifically with Complainant's inadequate training.

XI.A.2.b.iii. Circumstances in which inference is not raised; employer simply failed to follow through

Where the complainant testified that he had requested that he be provided with a copy of the Respondent's Operating and Emergency Procedures Manual, but there was no evidence that either of the supervisors he had talked to had reacted negatively to his request, and it was uncontested that management and other employees possessed copies of the manual, his protected activity alone was insufficient to raise an inference that his subsequent firing was retaliatory. At worst, the supervisors simply did not follow through and provide the complainant with a manual. Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. at 7.

[Nuclear and Environmental Digest XI A 2 c]
CAUSATION; DECISIONMAKER'S KNOWLEDGE OF PLAINTIFF'S PROTECTED ACTIVITY CONCERNING WASTE MANAGEMENT AT LANDFILL; GENUINE ISSUE OF MATERIAL FACT MAY BE CREATED BASED ON DECISIONMAKER'S RESPONSIBILITIES AS PROJECT MANAGER FOR NEW WASTE MANAGEMENT SUBCONTRACTOR

CAUSATION; DECISIONMAKER'S KNOWLEDGE OF PLAINTIFF'S PROTECTED ACTIVITY; UNCERTAINTY WHETHER "IMPUTED KNOWLEDGE" OR "CAT'S PAW" THEORY APPLIES IN A RETALIATION (AS OPPOSED TO DISCRIMINATION) CASE

In Vander Boegh v. EnergySolutions, Inc. , 12-cv-5643 (6th Cir. Aug. 14, 2013) (2013 WL 4105648) (unpublished) (case below 2006-ERA-26), the Plaintiff was a landfill manager who engaged in a range of protected activity while working for a subcontractor to handle waste management at the Paducah Gaseous Diffusion Plant (PGDP). When another contractor took over the PGDP contract and subcontracted with a different company for waste management, the Plaintiff was not hired as the landfill manager and his employment was terminated. The Plaintiff alleged that he was purposely drafted out of the new contractor's bid on the contract in retaliation for his protected activity, and named three defendants in his ERA whistleblower complaint: the original contractor and the new contractor and subcontractor. A district court granted summary judgment in favor of all three Defendants. The Sixth Circuit reversed the summary judgment as to the new subcontractor and affirmed it as the other two Defendants.

Adverse action; materially adverse standard A manager who had previously been found in a DOE whistleblower proceeding to have retaliated against the Plaintiff had left employment with the original contractor and joined the new contractor. He assigned the new contractor in preparing its bid for the PGDP contract. The Plaintiff alleged that this manager drafted the waste management portion of the bid in such a way as to eliminate the Plaintiff as landfill manager and insert himself into that position. Applying the Burlington Northern "materially adverse" standard for determining adverse employment action in the retaliation context, the court found that the Plaintiff had failed to establish a genuine issue of material fact whether the bid language was materially adverse. The court faulted the Plaintiff for failing to include in the record the actual bid language, and sole reliance on his own bare assertions.

Decisionmaker's knowledge of protected activity; reasonable jury could find that decisionmaker had due diligence responsibility and would have discovered Plaintiff's protected activity

A second claimed adverse action was the new subcontractor's transition project manager's decision not to hire the Plaintiff as landfill manager. The court stated this decision was undisputedly adverse employment action. The question remained, however, of whether the new manager knew of the Plaintiff's protected activity prior to the date he decided to hire another person for the landfill manager position. The court rejected many of the Plaintiff's arguments on the issue of actual knowledge, but found that other circumstantial evidence supported the claim specifically that a reasonable jury could conclude that the new manager was responsible for performing due diligence in the area of material disposition and would have discovered the Plaintiff's environmental complaints; that this manager was responsible for hiring a landfill manager and, as part of the hiring process, would have acquired information regarding the current landfill manager and his protected activities. Because there were genuine issues of material fact whether the new manager had actual knowledge of the Plaintiff's protected activity, the district court erred in granting summary judgment as to the new subcontractor.

Imputed knowledge or cat's paw theory of liability; question whether theory is available in retaliation case; summary judgment warranted where evidence did not show a genuine issue of material fact that decisionmaker was influenced

The court noted the Plaintiff's alternative "imputed knowledge" or "cat's paw" theory of liability. The court noted that this theory originated in the employment discrimination context and that it was not clear under the Sixth Circuit's precedent whether that theory is available in a retaliation case. The court stated that it may be necessary for the district court to analyze the issue on remand. Assuming that the theory applied, the court found that genuine issues of material fact existed as to whether the person who was ultimately hired as the landfill manager learned of the Plaintiff's protected activity prior to being offered the job, and thereafter influenced the new manager's hiring decision.

The court affirmed the dismissal of the new contractor because there was no genuine issue of material fact created on the issue of whether the bid language was materially adverse, and because assuming a cat's paw theory is available, there was insufficient evidence to show that the new contractor's officials had any influence over the new manager's decision to hire a person other than the Plaintiff for the landfill manager position. Similarly, the court affirmed the dismissal of the original contractor, again because even assuming the availability of a cat's paw theory of liability, there was scant evidence in the record that it influenced the hiring decision. What evidence the Plaintiff presented was largely speculative and insufficient to create a genuine dispute.

Dissent: Issue is not what the new manager could have discovered about the Plaintiff's protected activity, but whether the new manage did have knowledge about the protected activity

One member of the court dissented in part, disagreeing that a genuine issue of material fact existed regarding the new manager's knowledge of the Plaintiff's protected activity. The dissenter indicated that the majority had relied on what the new manager could have discovered about the protected activity, and that this was insufficient to create a factual issue as to whether he did have such knowledge. The dissenter also expressed concern whether the Plaintiff was an employee within the meaning of the ERA whistleblower provision because the Plaintiff's only connection to the new subcontractor was his employment with the company that the new subcontractor supplanted. The new subcontractor never "hired" the Plaintiff.

[Nuclear and Environmental Digest XI A 2 c]
ENVIRONMENTAL STATUTES AND EMPLOYER KNOWLEDGE; GRANTING SUMMARY JUDGMENT FOR THE EMPLOYER BECAUSE THE PLAINTIFF OFFERED INSUFFICIENT EVIDENCE THAT THE MANAGER WHO MADE THE DECISION NOT HIRE THE PLAINTIFF KNEW ABOUT THE PLAINTIFF'S PREVIOUS COMPLAINTS TO A GOVERNMENT AGENCY

In Boegh v. Energy Solutions, Inc. , No. 5:10-CV-31, 2012 WL 1576158 (W.D.Ky. May 3, 2012) (case below ALJ No. 2006-ERA-26), the plaintiff filed suits against three defendants under whistleblower protection provisions of the Energy Reorganization Act, 42 U.S.C. §; 5851 ("ERA"), The Solid Waste Disposal Act, 42 U.S.C. §; 6971 ("SWDA"), the Clean Water Act, 33 U.S.C. §; 1367 ("CWA"); the Safe Drinking Water Act, 42 U.S.C. §; 300j-9(i)(2)(B)(ii) ("SDWA"); and the Toxic Substances Control Act, 15 US.C. §; 2622 ("TSCA"), as well as a claim under the False Claims Act ("FCA"). A few years prior to the instant complaint, the plaintiff, a landfill manager, first made several complaints regarding storing capacity and leakage of leachate from the landfill to company officials via email. These communications led to his first whistleblower retaliation complaint, which he filed with the DOE Contractor Employee Protection Program, 10 C.F.R. Part 708. Subsequently, with the plaintiff's employer's contract with the landfill set to expire, a project manager was assigned to transition the landfill to new management and to choose a new landfill manager. Ultimately, the project manager did not choose the plaintiff to fill the landfill manager position at the end of the transition. Complainant filed an ERA complaint alleging that he was passed over for the position because of his previous complaints about leakage of leachate, and that he was being coerced into accepting waste in violation of DOE waste acceptance criteria and State of Kentucky regulations.

The defendant argued in its summary judgment motion that the plaintiff could not prove that his employer knew of his protected activity because the project manager responsible for hiring the new landfill manager did not know about the plaintiff's previous complaints. Additionally, the defendant argued that the plaintiff could not establish a causal connection between his protected activities and the decision not to hire him. The court agreed, finding that the plaintiff had "presented no evidence, other than speculations and conspiratorial theories, to show that [the project manager] knew of [the plaintiff's] protected activities or was influenced by others with knowledge of his protected activities," and therefore granted summary judgment for the employer. Boegh at *16.

[Nuclear and Environment Digest XI A 2 c]
EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY; COMPLAINANT CANNOT RELY ON MERE SPECULATION THAT HIS PERSONNEL FILE REVEALED HIS PROTECTED ACTIVITY

In Muino v. Florida Power & Light Co. , ARB Nos. 06-092 and 06-143, ALJ Nos. 2006-ERA-2 and 8 (ARB Apr. 2, 2008), the Complainant alleged that the Respondent violated the ERA when the Complainant applied for work with one of the Respondent's contractors, and the Respondent informed the contractor that the Complainant was not eligible for rehire, resulting in the Complainant's interview being cancelled. The ineligibility for rehire had been based on an HR employee's review of the Complainant's personnel file (the Complainant having worked for the Respondent 10 years earlier), which had been passed on to other of the Respondent's employees who had been asked by contractors about the Complainant's eligibility.

The ALJ had granted summary decision on the ground that the employees who reported on the Complainant's ineligibility had not been aware of the Complainant's whistleblowing activity. On appeal, the ARB agreed with the ALJ that the Complainant had provided only speculation that his personnel file must have disclosed his earlier whistleblower activities. The Board stated that "allegations, bare denials, or speculative theories do not create a genuine issue of material fact that would entitle the non-moving party to an evidentiary hearing. At summary decision, [the Complainant] must produce affidavits or other admissible evidence that he suffered employment discrimination because of his safety complaints." USDOL/OALJ Reporter at 9 (footnote omitted).

XI.A.2.c. Respondent must be aware of protected activity

Where the complainant, together with seven other employees, was fired upon presenting a list of grievances (which included one item relating to safety) to a supervisor, and the supervisor immediately fired the group without looking at the list, this incident standing alone fails to establish a prima facie of retaliatory discharge because knowledge of a protected activity is an essential element of the prima facie case. Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. at 6-7.

[Nuclear and Environmental Whistleblower Digest XI A 2 c]
CAUSATION; LACK OF KNOWLEDGE OF RESPONDENT OF COMPLAINANT'S PROTECTED ACTIVITY

In Knox v. United States Dept. of the Interior , ARB No. 06-089, ALJ No. 2001-CAA-3, PDF the matter was on remand to the ARB from the Fourth Circuit. Knox v. United States Dep't of the Interior , 434 F.3d 721 (4th Cir. 2006). The ARB found that that the Fourth Circuit believed that the ARB's protected activity standard under the CAA only required that the Complainant in the case reasonably believed that asbestos was escaping into the outside, ambient air, and that the ARB had misapplied that standard. The Board, however, clarified its standard as requiring whistleblower to take some action on that belief, and indicated that there may be a conflict between the ARB's standard and the standard enunciated by the Fourth Circuit:

The ARB's protected activity standard for the CAA is . . .that an employee engages in protected activity under the CAA when he or she expresses a concern, and reasonably believes, that the employer has either violated an Environmental Protection Agency (EPA) regulation implementing the CAA or has emitted or might emit, at a risk to the general public, potentially hazardous materials into the ambient air. If the Fourth Circuit's standard for CAA-protected activity, however, requires only that the whistleblower reasonably believe that an employer is violating EPA regulations or is emitting, or is about to emit, potentially hazardous materials into the ambient air, Knox engaged in CAA-protected activity.

USDOL/OALJ Reporter at 5 (footnote omitted). The ARB indicated, however, that regardless of the standard for protected activity, the Complainant still did not prevail in the instant case because he admitted in testimony that he had not expressed a concern to the Respondent's management about asbestos escaping from a Job Corp. facility. Since the Respondent was not aware of the Complainant's protected activity, it could not have retaliated against him because of protected activity.

[Nuclear and Environmental Whistleblower Digest XI A 2 c]
CAUSATION; KNOWLEDGE OF PERSONS WHO MADE EMPLOYMENT DECISION

The ARB affirmed the ALJ's finding that the Complainant failed to prove that the persons who had input into the decision not to offer him a principle auditor position following a corporate reorganization were aware of the Complainant's safety activities in earlier employment. The position to which the Complainant applied would have been a promotion; he did not apply for his current auditor position and was terminated when not selected for the applied for position in the reorganized company. The Complainant on appeal argued that a finding that a newly hired manager made the decision to terminate him without contact from anyone in upper management was preposterous and that he had been terminated as part of a broad conspiracy to cover up safety issues he had raised. The ARB, however, found that the Complainant's theory was barely even rank speculation and that without evidence that the managers who declined to offer him the position he applied for knew about the alleged protected activity, his claim of retaliation was absolutely precluded. Shirani v. Comed/Exelon Corp. , ARB No. 03-100, ALJ No. 2002-ERA-28 (ARB Sept. 30, 2005).

[Nuclear and Environmental Whistleblower Digest XI A 2 c]
SUMMARY DECISION; MERE SPECULATION INADEQUATE TO DEFEND AGAINST MOTION SUPPORTED BY AFFIDAVITS THAT SHOW A FAILURE OF PROOF ON ESSENTIAL ELEMENT OF CASE; REFUSAL TO HIRE, LACK OF KNOWLEDGE BY HIRING OFFICIALS OF PROTECTED ACTIVITY

In Hasan v. Enercon Services, Inc. , ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB May 18, 2005), the ARB affirmed the ALJ's dismissal on summary judgment where the Complainant had failed to set forth specific facts on an issue upon which he would bear the ultimate burden of proof at trial in response to a motion for summary judgment supported by affidavits from managers swearing that they had no knowledge of the Complainant's previous whistleblower activities when they made the decision not to hire him. In other words, the Respondent was entitled to summary decision where it established a complete failure of the Complainant's proof concerning an essential element of the case. The Complainant's only response to the motion had been speculation that the Respondent had not hired him because "some background check" must have disclosed his earlier whistleblower activities or that the affiants must have committed perjury.

To the same effect Hasan v. Southern Co. , ARB No. 04-040, ALJ No. 2003-ERA-32 (ARB Mar. 29, 2005).

[Nuclear & Environmental Whistleblower Digest XI A 2 c]
IMPUTED KNOWLEDGE OF PROTECTED ACTIVITY; PERSON WITH KNOWLEDGE OF PROTECTED ACTIVITY HAD SUBSTANTIAL INPUT INTO DECISION TO FIRE COMPLAINANT

Where Complainant's supervisor had knowledge of Complainant's protected activity and had substantial input into the decision to fire Complainant, even though the vice president who actually fired Complainant did not know about the protected activity, such knowledge could be imputed to Respondent. Kester v. Carolina Power & Light Co. , ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003).

[Nuclear & Environmental Whistleblower Digest XI A 2 c]
RESPONDENT'S KNOWLEDGE; COMPLAINANT ERRONEOUSLY BLAMED FOR FILING SAFETY COMPLAINT

In Evans v. Baby Tenda , 2001 CAA 4 (ALJ Sept. 30, 2002), Respondent terminated Complainant's employment not only for her protected actions, but in part on the mistaken belief that she had also taken actions that actually had been taken by another employee. The ALJ held that:

I am of the opinion that the CAA whistleblower protections must extend to persons erroneously believed to have filed complaints. If an employer is free to fire anyone other than the complainant [who actually engaged in the protected activity], then that employer is free to eviscerate the CAA. In fact, taking adverse actions against coworkers, whether intentional or unintentional, may be more effective than retaliating only against the complainant because it encourages fellow employees to turn on the complainant to protect their own jobs. Whistleblower statutes are premised on the fact that some employees may hesitate to complain of safety and health issues for fear of retaliation. Even greater is that fear when the employee believes that retaliation will follow if any employee complains. The protection of the CAA must shield employees from both intentional or unintentional adverse actions, because in either case, such retaliation chills the interest of employees to exercise their rights. As such, the Respondent acted adversely to the Complainant with the clear intent of chilling the exercise of her rights under the CAA.

The ALJ cited in this regard, Reich v. Cambridgeport Air Systems, Inc. , 26 F.3d 1187, 1188 1189 (1st Cir. 1994). (section 11(c) OSHA case in which coworker was fired for being a friend of the worker who filed a complaint with OSHA).

[Nuclear & Environmental Digest XI A 2 c]
RETALIATORY MOTIVE; EMPLOYER NOT REQUIRED TO READ COMPLAINANT'S MIND

In Macktal v. U.S. Dept. of Labor , No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), Complainant responded to a counseling report for excessive absenteeism by submitting to his employer a handwritten memorandum in which he objected to the counseling report and stated that his "plan of action" was to file a non-compliance complaint with the NRC concerning the safe operation of the facility at which he worked. He also stated: "In a[n] effort to preserve my health and avoid any further harassment, I wish to be relieved of my duties until the TEC, NLRB, NRC can resolve these matters." A few hours later, Complainant's employment was terminated.

The Fifth Circuit observed that a complainant must show that the evidence is sufficient to permit an inference that the protected activity was the likely reason for the adverse action, and agreed with the ARB's observation that "[i]t would have required considerable mental gymnastics on the part of Brown & Root managers to recognize that, when Macktal said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures." Macktal v. U.S. Dept. of Labor , No. 98-60123, quoting Macktal v. Brown & Root, Inc. , 1986-ERA-23, slip op. at 5 (Sec'y Dec. Jan. 6, 1998). The court also agreed with the ARB's finding that"[w]e agree with the ALJ that a reasonable person could only interpret Macktal's request as a resignation and could not be held responsible for failure to intuit what Macktal now claims was on his mind." Id. , quoting Macktal v. Brown & Root, Inc. , 1986-ERA-23, slip op. at 5-6 (Sec'y Dec. Jan. 6, 1998).

See also Valerio v. Putnam Associates, Inc. , No. 98-1399 (1st Cir. Apr. 9, 1999), a Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. §; 215(a)(3), decision, relying in part on Clean Harbors Environ. Serv., Inc. v. Herman , 146 F.3d 12 (1st Cir. 1998), a STAA whistleblower decision. In Valerio the court observed that "not all abstract grumblings will suffice to constitute the filing of a complaint with one's employer." The court wrote that "written comments and criticisms made to an employer may not always amount to filed complaints [under the FLSA]." Thus, the court decided that, like the panel in Clean Harbors under the STAA, "we have little choice but to proceed on a case-by-case basis, addressing as a matter of factual analysis whether the internal communications to the employer were sufficient to amount to the 'filing of any complaint' within the statutory definition."

[Nuclear & Environmental Digest XI A 2 c]
RESPONDENT'S KNOWLEDGE; ASSERTION THAT RESPONDENT DID NOT KNOW COMPLAINANT WAS RAISING AN ENVIRONMENTAL CONCERN AS A COMPONENT OF THE SAFETY COMPLAINT

In Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for destroying military chemical agents including nerve gas, Respondent argued that its managers had not perceived Complainant's concerns as relating to the environment, but rather to OSHA workplace safety rules and Army regulations, and therefore Respondent could not be made liable under the environmental whistleblower statutes. The ARB found this argument erroneous both in regard to the law and the facts. The ARB found in one instance that the Army regulation at issue dealt with environmental concerns outside the facility, and therefore the manager had to have known that Complainant's citation of the regulation related to the general environment. In regard to Complainant's concern about a hydrogen leak, the ARB found it "preposterous" to assert that the managers would not comprehend the potential for a release of toxic chemicals into the general environment. Moreover, the ARB held that "legally ... the environmental acts do not require that a complainant articulate each statute or regulation that potentially could be violated because of a defect or safety issue about which he complains." Slip op. at 15.

[N/E Digest XI A 2 c]
[N/E Digest XI B 2 d viii]
LEGITIMATE NON-DISCRIMINATORY REASON FOR TERMINATION FROM EMPLOYMENT; EMPLOYEE'S BEHAVIOR TOWARD SUPERVISORS AND CO-WORKERS; LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY SUPERVISOR WHO MADE TERMINATION DECISION

In Adjiri v. Emory University , 97-ERA-36 (ARB July 14, 1998), Complainant was found to have failed to carry her burden of persuasion of unlawful discrimination where Respondent presented convincing evidence that it had legitimate, nondiscriminatory reasons for terminating Complainant's employment -- including insubordination, lack of co-operation with co-workers, and job abandonment. Moreover, Complainant failed to present any evidence to establish a link between her purported protected activity and her discharge. The ARB noted that the official who fired Complainant was not even aware of Complainant's safety complaints, and that the ALJ had accorded the pro se Complainant considerable latitude in presenting her case.

[N/E Digest XI A 2 c]
CONTRIBUTING CAUSE; MERELY BEING ON NOTICE OF COMPLAINANT'S OBJECTIONS TO CERTAIN WORK INSUFFICIENT TO ESTABLISH RETALIATORY MOTIVE

"Under the ERA, 'a determination that a violation has occurred may only be made if the complainant has demonstrated that protected behavior or conduct was a contributing factor' in the adverse action taken against the complainant. 63 Fed Reg. 6614, 6623 (Feb. 9, 1998), to be codified at 29 C.F.R. §;24.7(b)." Dobreuenaski v. Associated Universities, Inc. , 96-ERA-44 @ 10-11 (ARB June 18, 1998). In Dobreuenaski , Complainant had refused to enter the basement of a building where a wastewater transfer was scheduled to take place to assist turning two or three valves. Despite the explanation of the safety of the assigment by a health physicist and the offer of a respirator, Complainant refused the assignment. The building had been the subject of safety complaints by Complainant. The next day, Complainant was issued a verbal warning for the work refusal. The day after the warning, a meeting was scheduled to discuss clean-up and decontamination activities of the building's basement. Complainant refused to participate in either the planning or execution of any such activities.

The ALJ concluded that Complainant's demotion was unlawful because, although Employer did not know about Complainant's reluctance to enter the basement on the day of the wastewater transfer, it did on the day of the meeting to plan clean-up and decontamination.

The ARB found that the ALJ correctly found that the work refusals had been major reasons for the demotion, but that the ALJ erred in holding that the second assignment had been made as part of a plan to downgrade Complainant for engaging in protected activities. The ARB found that Complainant had not established by a preponderance of the evidence that Respondent's actions were retaliatory, pointing to evidence that Respondent had diligently attempted to assuage Complainant's concerns only to be rebuffed. The ARB concluded that the evidence showed that Respondent's decision to demote Complainant was based solely on Complainant's work refusal, and pointed to evidence that Respondent did not fire Complainant outright as it could have under the collective bargaining agreement, but conscientiously attempted to ally his concerns and to reassign him so that he would not have to do work he rejected. The ARB also observed that Respondent made timely and thorough investigations of Complainant's formal safety complaints. Finally, the ARB found that the ALJ's analysis was based on the faulty assumption that Complainant's safety concerns permitted him to reject summarily the basement cleaning assignment, citing decisions to the effect that "Although a work refusal may be protected under the ERA if the complainant has a good faith, reasonable belief that working conditions are unsafe or unhealthful, it loses its protection after the perceived hazard has been investigated by responsible management officials and, if found safe, is adequately explained to the employee." Id. at 12 (citations omitted).

KNOWLEDGE REQUIREMENT; HIGH LEVEL SUPERVISOR'S KNOWLEDGE OF PAPERWORK
[N/E Digest XI A 2 c]

In Mosley v. Carolina Power & Light Co ., 94-ERA-23 (ARB Aug. 23, 1996), the evidence failed to show that the manager of the nuclear power plant at which Complainant was working as a contract employee was aware of complaints by Complainant to contract foremen about paperwork or plant violations. Although the manager was responsible for implementing the modification work done by the contract, and he met daily with contract personnel about scheduling issues, specific workers and job assignments were not discussed. Questions about paperwork were addressed to contract foremen; the manager did not work at the level were he became aware of questions about paperwork.

The Board rejected Complainant's assertion that knowledge of protected activity could be imputed to the manager without proof. Although knowledge can be shown by circumstantial evidence, the Board stated, that evidence must show that an employee of the respondent with authority to take the complained of action, or an employee with substantial input in that decision, had knowledge.

KNOWLEDGE REQUIREMENT; DECISION TO TAKE ADVERSE ACTION BEFORE GAINING KNOWLEDGE OF PROTECTED ACTIVITY
[N/E Digest XI A 2 c]

Where an employer makes a decision to take adverse employment action against an employee prior to learning of the employee s protected activity, the employee s discrimination complaint is "doomed." See Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996) (citing Hasan v. Reich , No. 92-5170 (5th Cir. May 4, 1993) (unpublished decision; see 1 F.3d 1136); Batts v. NLT Corp. , 844 F.2d 331, 334 (6th Cir. 1988)).

KNOWLEDGE OF PROTECTED ACTIVITY; COMMON KNOWLEDGE OF MANAGERS; SUSPICION OF PROTECTED ACTIVITY
[N/E Digest XI A 2 c]

To establish the requisite element of knowledge in regard to nonselection for a position, the complainant must establish that an employee of the respondent who had substantial input into the selection decision had knowledge of the protected activity at the time the selection decision was made. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995). In Frady , the Complainant meet that burden by establishing that knowledge of his protected activity was widespread among the Respondent's managers. The Secretary concluded that at least one member of the selection committees strongly suspected, if he did not indeed know, that the Complainant had engaged in protected activity at the time of the committee selection proceedings.

See also slip op. at 38, in regard to another position that was advertised but not filled, but evidence that the employee responsible for the nonselection strongly suspected that the Complainant had applied, and any uncertainty in the record did not preclude a finding of retaliatory motive.

XI A 2 c Respondents' awareness of internal complaint

In Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y Aug. 4, 1995), the ALJ focused on the Complainant's contact with a state environmental agency as the only protected activity in the case, and overlooked the Complainant's internal complaints to management. Thus, when the ALJ found that the proof was inadequate to establish that management was aware of the Complainant's contact with the state agency, he erroneously concluded that the Respondent was not aware of any protected activity.

XI A 2 c RESPONDENT'S AWARENESS OF PROTECTED ACTIVITY

In Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995), the ALJ granted summary decision based in part on his finding that the Complainants failed to establish that the Respondent was aware of his protected activity. Specifically, the ALJ concluded that Complainant's allegation of Respondent's knowledge was based on assumptions and speculation. The Secretary noted that a complainant may make the required showing of a respondent's knowledge "either by direct or by circumstantial evidence." Samodurov v. General Physics Corp., 1989-ERA-20, slip op. at 11 (Sec'y Nov. 16, 1993). On the basis of Complainant's affidavits and deposition submitted in support of and in opposition to the motion, the Secretary found that there was a genuine issue of material fact concerning this issue.

XI A 2 c Managers who effected complainant's discharge must have had knowledge of protected activities

In Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995), the Respondent had employed an investigative agency to conduct surveillance to determine the source of leaks of its documents. Only a very limited number of persons were aware of the investigation. Where a management committee determined that the Complainant should be fired based exclusively on the Complainant's past poor performance and no discussion of the investigation, and none these managers had any knowledge of the investigation, the Secretary adopted the ALJ's finding that the Complainant had failed to establish the essential element of his complaint that the managers who effected his discharge had knowledge of his protected activities.

The Respondent's president and CEO was present and had knowledge of the investigation and that the Complainant had been identified as a probable source of the leaks. Nonetheless, the Secretary agreed with the ALJ that this officer merely ratified the recommendation of the management committee.

Further, even assuming the CEO's knowledge of Complainant's protected activity was a factor in the discharge, the record was found to support a finding that the Complainant would have been fired even if he had not engaged in protected activity. Complainant had a lengthy record of persistent disruptive, uncooperative behavior, poor performance, and refusal to perform assigned tasks. He had been disciplined several times, and warned that further misconduct could lead to discharge. When he committed those additional acts, the Respondent followed through on the warnings.

XI.A.2.c. Knowledge inferred from record as a whole

Knowledge of protected activity may be inferred from the record as a whole. Cf. Coral Gables Convalescent Home, Inc., 234 N.L.R.B. 1198 (1978).

Varnadore v. Oak Ridge National Laboratory, 92-CAA- 2, 5 and 93-CAA-1 (ALJ June 7, 1993) ("Under the circumstances, Respondent cannot insulate itself from the consequence of its actions with layers of bureaucratic deniability." Slip op. at 65.).

XI.A.2.c. Showing of knowledge by circumstantial evidence; must link knowledge to person with authority to take adverse action

Although knowledge of the protected activity can be shown by circumstantial evidence, that evidence must show that an employee of the respondent with authority to take the complained of action, or an employee with substantial input in that decision, had knowledge of the protected activity.

In Atchinson v. Brown & Root, Inc., 82-ERA-9 (Sec'y June 10, 1983) and Frazier v. Merit Systems Protection Board, 672 F.2d 150 (D.C. Cir. 1982), it was held that where managerial or supervisory authority is delegated, the official with ultimate responsibility who merely ratifies his subordinates' decisions cannot insulate a respondent from liability by claiming "bureaucratic 'ignorance'." 672 F.2d at 166. Those cases do not hold that knowledge can be imputed to a deciding official who has not delegated decision making authority or is not simply adopting the recommendation of a subordinate who did have knowledge.

Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y June 24, 1992), slip op. at 4 n.1.

XI.A.2.c. Respondent's awareness of protected activities

Where the record established that the Complainant was fired for a specific instance of insubordination, and there was nothing in the record to support an inference that the person who did the firing knew anything about the Complainant's protected activities, the Complainant failed to establish a prima facie case, and his complaint was dismissed.

The Secretary stated:

Although whistleblowers are protected from retaliation for blowing the whistle, the fact that any employee may have blown the whistle does not afford him protection from being disciplined for reasons other than his whistleblowing activities nor does it given such an employee carte blanche to ignore the usual obligations involved in an employer- employee relationship. Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986). As the court found in Dunham : "[a]n otherwise protected 'provoked employee' is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct." 794 F.2d at 1041 (citations omitted).

Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y July 26, 1988), slip op. at 8-9.

XI.A.2.c. Respondent's awareness

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), Complainant failed to establish as part of his prima facie case that the persons who participated in the decision to fire him knew that he had threatened an environmental suit. Although members of Respondent's security department were aware that Complainant threatened to file a law suit, the record did not indicate that they knew it was an environmental or citizens suit, or that they shared their information with any of the managers involved in the discharge. The testimony of those managers was convincing that they had no knowledge that Complainant had environmental concerns or that he intended to sue Respondent.

XI.A.2.c. Respondent must have been aware of protected activity

In Hancock v. Nuclear Assurance Corp., 91-ERA-33 (Sec'y Nov. 2, 1992), slip op. at 3-5, the complainant failed to establish a prima facie case of retaliatory discharge where she failed to present credible evidence showing that the respondent was aware of her protected activity at the time of retaliation. In Hancock , the complainant had reported to the F.B.I. that she suspected a co-worker was a spy, but the only evidence that the respondent knew of her F.B.I. complaint at the time of her termination was an affidavit of her husband, which was found not to be credible by the ALJ. In addition, the testimony of the four employees involved in the complainant's termination, the two F.B.I. agents involved with her report, and the complainant's own testimony supported a conclusion that the respondent was not aware of the complaint at the time of discharge.

XI.A.2.c. Suspicion of complainant

A manager's suspicions that the complainant filed complaints with government agencies may be sufficient to show respondent's knowledge. See Pillow v. Bechtel Construction, Inc., 87-ERA-311 (Sec'y July 19, 1993), citing Williams v. TIW Fabrication Machining, Inc., 88-SWD-3 (Sec'y June 234, 1992), slip op. at 6.

XI.A.2.c. Respondent's awareness of protected activity

In Hassell v. Industrial Contractors, Inc., 86-CAA- 7 (ALJ Mar. 30, 1987), aff'd, (Sec'y Feb. 13, 1989), the Complainant failed to establish a prima facie case where he did not establish that the Respondent had knowledge of his protected activity at the time of the adverse employment action.

XI.A.2.c. Respondent's awareness

Where the complainant discussed safety concerns with a safety inspector from the nuclear project for which the respondent was a contractor in an open work area with other respondent employees present, but the complainant presented no evidence to support his hypothesis that any respondent personnel was actually informed of his protected activity and admitted that the inspector would not have informed the respondent, the complainant failed to show that the respondent was aware of the protected activity at the time that the decision to lay off the complainant was made, and thus did not establish a prima facie case.

Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992).

XI.A.2.c. Input of person aware of protected activity sufficient to infer awareness

Where the person who actually discharged the complainant was not aware of the complainant's protected activity at the time he discharged the complainant, but an employee whose input contributed heavily to the decision to terminate the complainant's employment was aware of the protected activity, the respondent is deemed aware of the protected activity. Awareness is determined by looking to those in the decision making process, and under these circumstances, although the employee with awareness did not make the decision to discharge the complainant, his input made him part of the decision making process. Thompson v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993).

XI.A.2.c. Respondent's awareness

The complainant failed to establish a prima facie case of retaliation relating to allegations of withdrawal of a security clearance and controversion of a FECA claim by the respondent where he presented no evidence that any employee of the respondent involved in those decisions was aware of his complaint to the NRC.
The complainant had been trapped in a Post Accident Sampling Room due to a faulty locking mechanism on the door. The incident was reported and investigated. The complainant independently telephoned the NRC about the incident, and later went to the respondent's Employee Concern Program about the defective door mechanism. In the interim, the complainant attempted to return to work, but felt very nervous, short of breath and closed in. The complainant's personal psychiatrist informed the respondent's medical services department that he was treating the complainant for anxiety and panic attacks resulting from the lock-in incident. Later the psychiatrist informed the respondent that the complainant was totally disabled from work due to severe claustrophobia and panic disorder, and could not return to work for at least another month.

The respondent initiated the procedure to withdraw the complainant's medical approval for unescorted access to the nuclear plant's protected areas and to work. The complainant was eventually denied access.

The complainant filed a claim under the Federal Employees' Compensation Act due to problems caused by the lock-in incident, and the respondent objected on the ground that the condition was preexisting rather than a traumatic injury.

House v. Tennessee Valley Authority, 91-ERA-42 (Sec'y Jan. 13, 1993).

XI.A.2.c. Respondent's knowledge of protected activity

One of the elements of a prima facie case under section 5851 of the ERA is proof that the party charged with unlawful discrimination knew of the Complainant's protected activity. Where the only proof that the employer knew of Complainant's raising of safety concerns was evidence that knowledge is fairly well-communicated within the nuclear power industry, Complainant failed to establish that the employer had knowledge of his asserted protected activity. Howard v. Quadrex Energy Servs., 91-ERA-38 (ALJ June 18, 1991) , aff'd (Sec'y Dec. 10, 1991).

XI A 2 c Use of circumstantial evidence to establish knowledge

In Dean & Lamb v. Houston Lighting & Power Co., 93-ERA-7 and 8 (ALJ Apr. 6, 1995), two Complainants alleged that they were terminated from employment because they had expressed concerns both internally and to the Nuclear Regulatory Commission about breaches of security at a nuclear facility owned and operated by the Respondent. Those concerns involved visitor access, compensatory requirements for lighting failures, management key access to vital spaces, the lockdown procedure for one electrical generating unit, response to a power outage, an allegedly inappropriate relationship between an NRC inspector and a member of Respondent's Nuclear Security Department, and a damaged security door knob. A central issue in the proceeding before the ALJ was whether the Respondent was aware of the Complainants' protected activity at the time the Complainants' employment was terminated due to a layoff.

The Respondent denied categorically that any of the managers or agents responsible for a reorganization that resulted in the Complainants' layoffs had knowledge of the Complainants' protected activity. As a result, the Complainants' proof had to be established by circumstantial evidence. The ALJ found that proof of direct or actual knowledge of protected activity did not have to be established by the Complainants. Rather, the Complainants could make out a case by establishing that the managers were either aware, or strongly suspected, that the Complainants had complained to the Nuclear Regulatory Commission. ALJ slip op. at 555-56, citing Pillow v. Bechtel Construction, Inc., 87- ERA-35 (Sec'y July 19, 1993), slip op. at 11-13; Williams v. TIW Fabrication Machining, Inc., 88- SWD-3 (Sec'y June 24, 1992), slip op. at 6. In addition, the ALJ noted that knowledge of protected activity could be imputed to the Respondent if the ultimate decision maker had delegated the decision making authority and ratified the decisions of the subordinates involved: proof is sufficient if the record establishes that an employee of the company "with authority to take the complained of action, or an employee with substantial input into that decision, had knowledge of the protected activity." ALJ slip op. at 57, quoting Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y Apr. 7, 1993), slip op. at 4 n.1.

The ALJ carefully reviewed the factual record and concluded that although the relevant decision making authority had been delegated, the exercise of that discretion was influenced by the significant input of other managers who knew about the Complainants' activities. In addition, the ALJ found that there was ample evidence to support an inference that the Respondent's knowledge of the Complainant's activity resulted in their selection for layoff. The ALJ concluded, inter alia,

Viewing the record as a whole, I find that the methodologies used [by the manager] in effecting the reorganization and terminations, the categorical denials of knowledge of the protected activities by HL&P managers, and the virtual omnipresence of legal counsel at critical junctures, disclose an artificially contrived effort to insulate the managers from the kinds of information and awareness that sophisticated and diligent managers in such a small and technical environment would normally have had.

ALJ slip op. at 78.

The ALJ found that although reorganization of the department in which the Complainants had been employed was a plausible reason for the layoff, the evidence viewed as a whole established that the reorganization was itself a response to the Complainants' protected activities, and that their protected activities permeated and tainted their selection for layoff in conjunction with the reorganization.

XI.A.2.c. Managers responsible for adverse decision; failure to show knowledge of

Where Complainant failed to show that a genuine issue of material fact existed with respect to a requisite element of his prima facie case of retaliatory discharge, the Secretary approved the ALJ's granting of summary judgment. In Merriweather v. Tennessee Valley Authority, 91-ERA-511 (Sec'y Feb. 4, 1994), Complainant asserted that his discharge for the stated reason that he sexually harassed a female TVA employee was fabricated and that the reason for his discharge was protected safety complaints to the NRC. Complainant, however, admitted that he could not produce any evidence to support a finding that the TVA managers responsible for the discharge decision knew anything about his alleged protected activity.

The Secretary cited the following cases as precedent on granting summary decision:

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989); Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom. Howard v. U.S. Dept. of Labor, 959 F.2d 234 (6th Cir. 1992) [table case; full decision reported at 1992 U.S. App. LEXIS 6570].

XI. A. 2. c. Respondent's awareness of protected activity

In Dillard v. Tennessee Valley Authority, 90-ERA-31 (Sec'y July 21, 1994), the respondent had placed a restrictive code in the complainant's personnel file that could prevent reemployment, but the person who placed the code in the file did so on the basis of a finding by the Office of the Inspector General that the complainant had engaged in travel voucher fraud, and without knowledge of the Complainant's earlier protected activities. On review, the Secretary found (in the context of whether an inference of causation was raised for a prima facie case) that this did not demonstrate animus on the behalf of the respondent for the protected activity.

[Editor's note: Some of the facts for this case note came from the ALJ's recommended decision Dillard v. Tennessee Valley Authority, 90-ERA-31 (Sec'y July 21, 1994).]

XI.A.2.c. Respondent's awareness

[Editor's note: Secretary ultimately found prima facie case established for another reason]

XI.A.2.c. Respondent's subjective perception

Even if the person who took adverse action against the complainant was mistaken in his or her belief that the Complainant unjustifiably failed to follow supervisory instructions, a discharge based on that belief is not violative of the SWDA because the critical focus is on the actor's knowledge and subjective perception of the circumstances. See Jeffries v. Harris County Community Action Assoc., 6111 F.2d 1025, 1036 (5th Cir. 1980); Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), slip op. at 26.

Monteer v. Casey's General Stores, Inc., 88-SWD-1 (Sec'y Feb. 27, 1991).

XI.A.2.c. Respondent's awareness

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), when the employees who recommended and approved the denial of site access to Complainant testified convincingly that they did not know about Crosier's purported environmental activities and reports to the government at the time, the Complainant failed to establish the element of a prima facie case that the Respondent knew of his protected activities when it took the adverse action against him.

X.A.2.c. Respondent's awareness

Where it was undisputed that Complainant filed complaints with the Nuclear Regulatory Commission, Texas Utilities Electric's Corporate Security, and the Sommerville County Sheriff only after his lay off, he failed to establish that he engaged in protected activity prior to the challenged adverse action.

Moreover, there was no evidence indicating that Respondent was aware of Complainant's concerns at the time the lay off decision was made.

Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7, 1994).

XI.A.2.c. Respondent's awareness

To establish the element of knowledge of Complainant's protected activities, the evidence must show that Respondent's managers responsible for taking the adverse actions had knowledge of the protected activities. Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994).

Thus, where the managers responsible for recommending and taking the adverse actions were not aware of the Complainant's protected activities, the Complainant has not established a prima facie case of a violation of the employee protection provision.

XI.A.2.c. Respondent's awareness

Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992).

XI.A.2.c. Where single person made employment decision, focus is on that person's knowledge

Where the Director of the Quality Assurance Department's credible testimony was that he alone made the decision not to select Complainant for a managerial or supervisory position during a company reorganization, whether the decision was motivated by intentional retaliatory discrimination depends on that Director's knowledge and perception of Complainant's protected activity. [citations omitted]

Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993) (under the circumstances, it was unlikely that the newly appointed Director was concerned with, or even aware of, Complainant's protected activity).

XI.A.2.c. Protected activity after quitting

Where all of the complainant's protected activity occurred after he had quit his job, he could not make out a prima facie case that the respondent terminated him because of his protected activity. Hadley v. Quality Equipment Co., 91-TSC- 5 (Sec'y Oct. 6, 1992) (the ALJ had found that the complainant had not resigned; the Secretary accepted the ALJ's findings of fact and credibility determinations, but rejected the inferences he drew from those findings).

XI.A.2.c. Complainant only one of many employees laid off

Where the Complainant was only one of among 80-90 men who were included in a reduction in force, and the record established that the Respondent and at least one of the Complainant's partners found him to be a difficult employee, the Complainant was not entitled to an inference that the reduction in force was caused by the Complainant's filing of quality concerns. Emory v. North Brothers Co., 86-ERA-37 (ALJ Jan. 7, 1987), aff'd, (Sec'y May 14, 1987).

XI.A.2.C. Respondent's awareness of protected activity

In Henrey v. Pullman Power Products, Corp. , 86-ERA-13 (Sec'y June 3, 1987), the Secretary adopted the findings that the Complainant had failed to engage in protected activity and that the Respondent terminated the Complainant for insubordination. The Secretary added that even if his complaint to an inspector was considered protected activity, there was no evidence that any company official was aware of this complaint or that it played any role whatsoever in the decision to discharge. The ALJ found, and the Secretary agreed, that the management officials involved were unaware of any of the activities on which he based his complaint. Therefore, the Complainant did not establish a prima facie case by showing that he engaged in protected activity or that the employer was aware of the activity and took adverse action.

XI. A. 2. c. Respondent's awareness of protected activity

[Editor's note: Some of the facts for this case note came from the ALJ's recommended decision Dillard v. Tennessee Valley Authority, 90-ERA-31 (Sec'y July 21, 1994).]

XI.A.2.d. Direct evidence of discrimination

The order and allocation of burdens of proof and production in Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983) are applicable only where circumstantial evidence of discrimination is presented. If direct evidence of discrimination exists, and it is not effectively rebutted, a respondent can avoid liability only by showing it would have taken the same action in the absence of protected activity. Blake v. Hatfield Elec. Co., 87-ERA-4 (Sec'y Jan. 22, 1992). Bartlik v. Tennessee Valley Authority, 88- ERA-15 (Sec'y June 24, 1992), slip op. at 4.

[Nuclear and Environmental Whistleblower Digest XI A 2 d]
RETALIATORY ANIMUS; STRAY BOASTFUL REMARK BY SUPERVISOR INSUFFICIENT TO ESTABLISH ANIMUS WHERE OTHER SUPERVISORS WERE RESPONSIBLE FOR LAYOFF, JOB OFFERS MADE TO COMPLAINANT

In Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant presented testimony to the effect that Complainant's immediate supervisor had boasted that he was the only one with enough guts to get rid of Complainant. The ARB questioned whether there was credible proof that the statement was made, but even assuming it was made, declined to ascribe significance to it, noting that it was made after Complainant had been laid off, and that the supervisor had pressed his supervisors to offer Complainant another position. Moreover, the ARB concluded that other supervisors, and not Complainant's immediate supervisor, were responsible for placing Complainant on layoff, and for making decisions about offering Complainant other positions. Thus, even if the remark had been made "it would not be legally significant in connection with [Complainant's] layoff and subsequent job offers, which were determined by higher-level ASIS personnel." Slip op. at 12 (citation omitted).

[Nuclear & Environmental Digest XI A 2 d]
CAUSATION; REQUIREMENT OF DIRECT EVIDENCE SHOWING SPECIFIC LINK BETWEEN IMPROPER MOTIVE AND CHALLENGED EMPLOYMENT DECISION

In Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998), the ARB, once finding that Complainant had engaged in protected activity and that Respondent knew about that protected activity, looked to the question of whether Complainant established by a preponderance of the evidence that his termination from employment was in response to his protected activity. The ARB wrote that "[t]he finding that there is an illegitimate motive requires direct evidence 'showing a specific link between an improper motive and the challenged employment decision.'" Slip op. at 15, quoting Carroll v. USDOL , 78 F.3d 352, 357 (8th Cir. 1996) (case below 1991-ERA-46).

[N/E Digest XI A 2 d]
DIRECT EVIDENCE OF ANIMUS; COMPLAINANT MUST STILL ESTABLISH CAUSAL CONNECTION TO ADVERSE EMPLOYMENT ACTION

The fact that Complainant's supervisor candidly acknowledged that he would prefer not to supervise an employee who, without authorization, gave business documents to a reporter and to Congress, and that he suspected that Complainant had participated in such activities, does not end the inquiry in a DOL ERA whistleblower proceeding. Rather, the complainant has the burden to establish that the supervisor's animus against supervising whistleblowers was a contributing factor in an adverse action. Trimmer v. Los Alamos National Laboratory , 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997).

[N/E Digest XI A 2 d]
MOTIVE; "UNION MENTALITY" OF COMPLAINANT

Where the company official who made the decision to discharge Complainant based his decision in part on Complainant's "union mentality," and that official's description of what he meant by union mentality included Complainant's complaints about ALARA (the NRC regulation requiring licensees to maintain radiation exposures and releases in unrestricted areas "as low as reasonably achievable" 10 C.F.R. §; 20.1(c)) and glove sizes, there was direct evidence of discrimination for illegitimate reasons. The Board found that these concerns were reasonably perceived violations of the ERA. MacLeod v. Los Alamos National Laboratory , 94-CAA-18 (ARB Apr. 23, 1997)(this was actually an "ERA" case).

RESPONDENT'S AWARENESS
[N/E Digest XI A 2 d]

In Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), the Secretary found that the presence in a lunchroom used by many employees of cartoons depicting the Complainant as a whistleblower was evidence indicating that the managers were aware of the Complainant's reputation or history as a NRC whistleblower. The Secretary assumed that managers, although located on a different floor, also used the lunchroom.

PROTECTED ACTIVITY; RESPONDENT'S KNOWLEDGE
[N/E Digest XI A 2 d]

In Miller v. Thermalkem, Inc., 94-SWD-1 (Sec'y Nov. 9, 1995), a manager reached a decision to fire the Complainant for improper processing of waste and falsification of paperwork, but gave the Complainant an opportunity to tell his side of the story before the discharge. The manager delayed the discharge because the Complainant, although admitting the wrongdoing, alleged that such wrongdoing was widespread at the facility. Because the manager had decided to fire the Complainant prior to the protected activity of reporting other wrongdoing, the Secretary concluded that the Complainant did not establish the knowledge of protected activity element of the complaint. The Secretary also concluded, that even if this was a dual motive case, the Respondent established that it would have fired the Complainant even if the Complainant had not made the allegation.

XI A 2 d Complaint to supervisor is complaint to respondent's management

In Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar. 16, 1995), the Secretary indicated that a complaint to a supervisor is a complaint to the Respondent's management.

XI.A.3. Adverse action element of prima facie case

Where the complainant alleged that he was blacklisted by a power company because of his complaints to the NRC during his employment with that company, and asserted that he wished to pursue a complaint against an employment agency through which he had been unsuccessfully attempting to obtain employment to explore whether that agency had information concerning the alleged blacklisting, the Secretary, declining to reach the issue of whether the agency was a covered respondent under the ERA, dismissed the complaint because the complainant had failed to allege the essential element of a prima facie case of adverse action by the employment agency.

Doyle v. Bartlett Nuclear Services, 89-ERA-18 (Sec'y May 22, 1990).

XI.A.3. Existence of adverse action

Where the respondent submitted evidence on a motion for summary judgment showing that it has a policy of compliance with a NRC Regulatory Guide recommending that quality control personnel at nuclear construction projects be a high school graduate or have earned a GED equivalent, and the complainant admittedly did not satisfy these requirements nor did he present any evidence to refute the respondent's contention that it consistently follows the guideline, the complainant could not make out a prima facie case of discriminatory refusal to rehire or hire with respect to the quality control positions because he cannot show that he has the educational qualifications required.

Nevertheless, the complainant also alleged that he sought "comparable position[s]" with the Respondent and that he was blacklisted by the respondent. The Secretary remanded to the ALJ for consideration of these allegations.

The complainant and the respondent had reached a settlement of an earlier ERA complaint. Apparently an oral term of the settlement was (according to the complainant) "reemployment at a comparable position." The respondent was apparently mislead about the complainant's education when he previously was employed as a quality control inspector. Bryant v. Ebasco Services, Inc., 88-ERA-11 (Sec'y July 9, 1990).

[Editor's note: On remand, the ALJ found that the settlement did include a promise of reinstatement to a "comparable position" but not necessarily until layoffs ended and vacancies arose. Upon consideration of the fact that the complainant obtained the position by fraud, and maintained that fraud through the settlement negotiations, and in the reapplication for employment, the ALJ struck the "fraudulently procured portions of the settlement agreement . . ., that is, the continued employment provisions." In addition, the ALJ found that the educational discrepancy was an independent basis for discharging the complainant. Bryant v. Ebasco Services, Inc., 88-ERA-11 (ALJ Feb. 27, 1992).]