USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XI B -- ARTICULATION OF NONDISCRIMINATORY REASON FOR ADVERSE ACTION

USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON FOR ADVERSE ACTION

[Last updated Jan. 25, 2013]

XI. Burden of proof and production

* * *

B. Nondiscriminatory reason for adverse action

1. Generally

2. Particular reasons

a. Nondiscriminatory layoffs

b. Behavior of complainant

i. Protest activities

ii. Poor work performance

iii. Leaving work area

iv. Abusive or threatening behavior

v. Misuse of company property

vi. Disruption of the work place

vii. Obtaining job with fraudulent credentials

viii. Insubordination/authorized actions

ix. Bypassing the chain of command

c. Other reasons

3. St. Mary's Honor Center ; bursting bubble upon articulation; prima facie case analysis looses relevance

XI.B.1. Generally

Even if the complainant establishes a prima facie case of retaliatory discharge, the respondent is allowed the opportunity to come forward with evidence that it discharged the complainant for legitimate reasons. Morris v. The American Inspection Co., 92-ERA-11 (Sec'y Dec. 15, 1992), slip op. at 8-9 (citing Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 8).

[Nuclear & Environmental Digest XI B 1]
PRIMA FACE CASE; EMPLOYER'S BURDEN TO ARTICULATE A LEGITIMATE, NON-DISCRIMINATORY REASON FOR THE ADVERSE ACTION IS NOT A BURDEN OF PROVING THAT IT WAS ACTUALY MOTIVATED BY THE ARTICULATED REASON

In Morriss v. LG&E Power Services, LLC , ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), PDF | HTM the ALJ erred in stating that after the complainant shows adverse action, protected activity, and nexus, the burden of proof shifts to the respondent to prove that it took the adverse action for a legitimate, non discriminatory reason. Rather, the respondent's burden at that point is only to articulate or produce evidence of a non discriminatory reason for taking the adverse action. The ALJ also erred in evaluating the credibility of the Respondent's witnesses at that stage of the proceedings, and putting the burden on the Respondent to prove that it had no intent. At this stage, the respondent does not need to persuade the adjudicator that it was actually motivated by the proffered reasons, but only raise a genuine issue of fact as to whether it discriminated against the plaintiff.

[Nuclear & Environmental Digest XI B 1]
EVIDENCE; RELEVANCE OF ADVERSE ACTIONS FOR WHICH NO TIMELY COMPLAINT WAS FILED

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB observed that adverse employment actions about which Complainant did not timely file complaints could not constitute independent causes of action, but are clearly relevant to question of Respondent's motive for its later termination of Complainant's employment because Respondent cited previous incidents as a contributing factor in the termination decision. Moreover, the ARB held that even incidents not cited as a contributing factor must be evaluating in examining the mind-set of the decision-makers in reaching the termination decision. The ARB also noted that they would be relevant to the issue of whether there had been a continuing violation culminating in Complainant's termination.

ARTICULATION OF LEGITIMATE, NONDISCRIMINATORY REASON; COMPLAINANT MAY RELY ON DOCUMENTARY EVIDENCE SUBMITTED BY COMPLAINANT
[N/E Digest XI B 1]

In Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), the Complainant argued that the Respondent failed to rebut his prima facie case when it relied for evidence of the explanation of its actions solely on a "Speakout" report issued following an internal investigation, when it had been admitted as a Complainant's exhibit. The Respondent did not call any witnesses. The Secretary stated that "[s]ince an employer may meet its burden by cross-examining the employee's own witnesses . . ., it should be permitted to rely on evidence such as [the Speakout report], submitted and pursed by the employee at the hearing as employer's explanation." Slip op. at 17 n.13 (citations omitted). The Secretary found that the Speakout report "raised a genuine issue of fact as to whether the employer discriminated against the employee." Slip op. at 17.

BURDEN OF PROOF; EMPLOYER'S REASON FOR ADVERSE ACTION
[N/E Digest XI B 1]

In considering whether a demotion was retaliatory, the Respondent is not required to prove a non-discriminatory reason. "It is not enough to disbelieve the employer; the factfinder must believe the employee's explanation of intentional discrimination." Smith v. Esicorp, Inc. , 93-ERA-16, slip op. at 21-22 (Sec'y Mar. 13, 1996), citing St. Mary's Honor Center v. Hicks , 113 S. Ct. 2742, 2754-56 (1993).

CLEAR AND CONVINCING STANDARD OF ERA SECTION 211
[N/E Digest XI B 1]

In Remusat v. Bartlett Nuclear, Inc. , 94-ERA-36 (Sec'y Feb. 26, 1996), the ALJ had concluded that the 1992 amendments to the whistleblower provision of the ERA lessened a complainant's initial burden in establishing a prima facie case, and that the "clear and convincing evidence" standard of Section 211, 42 U.S.C. § 5851(b)(3)(D), was applicable to evidence of legitimate reasons for the Respondent's adverse action that was proffered in response to the prima facie case. The Secretary noted that the ALJ did not have the benefit of his decision in Dysert v. Florida Power Corp. , 93- ERA-21 (Sec'y Aug. 7, 1995), appeal docketed Dysert v. Sec'y of Labor , No. 95-3298 (11th Cir. Sept. 28, 1995), in which the Secretary determined that the initial burden in establishing a prima facie case was unchanged by the 1992 amendments. The Secretary also held that the "clear and convincing standard" of Section 211 is reached only if the dual or mixed motive doctrine is invoked.

BURDEN OF ARTICULATION; PRODUCTION NOT PERSUASION
[N/E Digest XI B 1]

When the burden shifts to the respondent to articulate a legitimate nondiscriminatory reason for failing to hire a complainant, the employer need not persuade the court -- the burden is only of production. Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995), citing Kahn v. United States Secretary of Labor, 64 F.3d 271, 278 (7th Cir. 1995). In Bausemer , the Respondent's articulated reason for not hiring the Complainant, implementation of a "Staff Augmentation Program" (an effort to reduce cost of employees supplied by contractors by negotiated selection), was sufficient to dissolve the Complainant's prima facie case and place the burden on the Complainant to prove that the proffered reason was pretext. Although there was some evidence that the Staff Augmentation Program involved a degree of manipulation, the Secretary concluded that the Respondent's motivation was continuity of operation rather than retaliation against the Complainant.

XI.B.1. Legitimate, nondiscriminatory reason for adverse action

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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) (Title VII case).

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

XI.B.1. Respondent's burden; does not need to show reason was supported by the facts, but only that it believed them at the time

Where the ALJ found that the Respondent concluded in good faith that the Complainant assaulted a co-worker and the Complainant was discharged for that reason alone, the Secretary responded to the Complainant's contention that the Respondent did not prove that the Complainant actually assaulted the co-worker by noting that the Respondent did not have the burden of proving that the attack took place. Rather, the Complainant had the burden of proving by a preponderance of the evidence that retaliation for protected activities was a motivating factor in the Respondent's decision to discharge the Complainant. The Respondent's burden after the Complainant established his prima facie case was only to articulate a legitimate reason for the discharge. Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).

XI.B.1. Respondent's burden; does not need to show reason was supported by the facts, but only that it believed them at the time

An employer's discharge decision is not unlawful even if it was based on a mistaken conclusion about the facts, but a decision violates the Act only if it was motivated by retaliation. Morgan v. Massachusetts General Hospital, 901 F.2d 186, 191 (1st Cir. 1990); see Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989), and cases cited therein; Jeffries v. Harris County Community Action Assoc., 615 F.2d 1025, 1036 (5th Cir. 1980). Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).

XI.B.2.a. Denial of plant access by power company

The respondent articulated a legitimate, nondiscriminatory reason for the complainant's termination where he had been denied plant access by the power company, and without plant access complainant was not able to perform his employment duties. The respondent was able to show that it was not able to transfer the complainant to a job at another facility. The respondent provided inspection services to the power company.

The complainant's theory that he had been subjected to a pattern of adverse employment actions as a result of his complaint to the NRC was not supported by the evidence. Miller v. Ebasco Services, Inc., 88-ERA-4 (ALJ Nov. 24, 1992), aff'd (Sec'y Nov. 24, 1992).

[Nuclear and Environmental Whistleblower Digest XI B 2 a]
LEGITIMATE NON-DISCRIMATORY REASON FOR DISCHARGE; REDUCTION IN FORCE ("RIF")

In Jones v. USDOL , No. 04-3729 (6th Cir. Sept. 8, 2005) (case below ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21), the Court of Appeals indicated that an employee discrimination litigant faces a heightened burden of proof in the context of a RIF, because the RIF itself is evidence of a legitimate reason for the discharge. The court cited Barnes v. GenCorp Inc. , 896 F.2d 1467 (6th Cir. 1990) (Title VII case).

XI.B.2.a. Layoff

In Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992), the respondent established legitimate, nondiscriminatory reasons for the complainant's layoff, and the complainant failed to show that these reasons were a pretext for discrimination where

the nuclear power plant mandated layoffs by the respondent, a contractor, because of a reduction in force.
the complainant was one of many employees laid off.
testimony indicated that the respondent was not aware of the complainant's protected activity at the layoff selections were made.
testimony indicated that the personnel involved in selecting the complainant for layoff never mentioned safety complaints or other problems with the complainant, and the record showed that the complainant had been given a "good" evaluation and was eligible for rehire.
testimony indicated that the complainant's difficulty in being rehired related to his status as a traveler from a different union local.

XI.B.2.a. Denial of plant access by power company

XI.B.2.a. RIF in nondiscriminatory manner

Employer established that its reasons for a reduction in force were legitimate where Complainant's supervisor, who was found to be credible by the administrative law judge, testified that the RIF was occasioned by lack of billable contract work creating a financial drain on the employer. Employer also established that it conducted the RIF in a nondiscriminatory fashion where the testimony of Complainant's supervisor indicated that four employees were RIFed at the same time, there was no suggestion that the other three employees were also targets of retaliation or that their selection for discharge was in any way improper, a low performance rating given to Complainant was based on a reasonable ratings system. Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).

XI.B.2.b.i. Protest activities interfering with job performance as ground for discharge

The Secretary erroneously relied on Hochstadt v. Worchester Foundation for Experimental Biology, 545 F.2d 222 (1st Cir. 1976), to find that even if a quality control inspector's objectives were proper, the form of his protected activities infringed on a legitimate interest of the employer. In Hochstadt the court upheld the dismissal of an employee who ignored her duties to concentrate exclusively on the cause of women's liberation. In EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1015 (9th Cir. 1983), the Ninth Circuit stated that the "true basis" of Hochstadt is that an employer may discharge employees who let protest activities interfere with their job performance. See also Wrighten v. etropolitan Hospitals, Inc., 726 F2d 1346, 1355 (9th Cir. 1984) (" Hochstadt must be read narrowly lest legitimate activism ... be chilled."). In the instant case, there was no contention that the quality control inspector's protected conduct impaired his competence as an inspector; instead, his conduct flowed directly from his duties. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

[Nuclear & Environmental Whistleblower Digest XI B 2 b i]
CAUSATION; STANDARD FOR EVALUATING WHETHER COMPLAINANT'S CONDUCT REMOVES WHISTLEBLOWER PROTECTION B INDEFENSIBLE UNDER THE CIRCUMSTANCES STANDARD

In Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ALJ had concluded that hostility toward the complainants was not motivated by their raising of safety concerns, but rather by a "sense of ownership" of the processes being used for weapons disassembly (which was being questioned by the Complainants), and the Complainants' conduct, such as improperly bypassing the chain of command and provoking hostility such as by threatening lawsuits and shut downs and ignoring advice from other workers. The ARB found that the ALJ's ruling about "sense of ownership" would permit personal, subjective sentiments to justify harassment of employees who were attempting to reduce risks of nuclear exposure or accident, and therefore antithetical to ERA whistleblower protection. The ARB found that the bypassing the chain of command finding was not supported by the record, and even if it were, it could not in itself deprive the Complainants of ERA protection. Finally, the ARB found that the ALJ applied the wrong standard in evaluating the impact of the Complainant's provocative conduct B the appropriate standard being "indefensible under the circumstances." The Board wrote:

To properly evaluate whether the hostility was related to protected activity, the Board must first examine the various incidents of harassment to determine whether they are linked to protected activity, or whether some acts of harassment were motivated by other factors, including conduct on the part of one or more of the Complainants that was wholly unrelated to protected activity. See Berkman , slip op. at 17 21; Acord v. Alyeska Pipeline Serv. Co., ARB No. 97 011, ALJ No. 95 TSC 4, slip op. at 2 6 (ARB June 30, 1997). If the harassment was linked to protected activity, we then examine the incident to determine whether one or more of the Complainants engaged in misconduct that was indefensible in those circumstances, and thus forfeited their protection under the ERA. See Martin, slip op. at 5. The Martin standard also applies to a complainant's conduct in circumstances in which he or she has been provoked by the actions of others that violate the ERA. See Dunham v. Brock , 794 F.2d 1037, 1041 (5th Cir. 1986); Carter , slip op. at 19 21. Of course, only the Complainants' protected activities that were known to their supervisors and co workers could have contributed to retaliatory harassment. See Berkman , slip op. at 16 17, 21 22.

Williams , ARB No. 98 030, USDOL/OALJ Reporter at 26.

XI B 2 b i Protest activities that include illegal acts or unreasonably hostile or aggressive conduct may provide an independent, nondiscriminatory reason for adverse employment action

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the ALJ credited evidence that established that the Respondent placed the Complainant on a "Denied Access List" ( see 10 C.F.R. § 73.55(d)(7)(1994)) because of irrational behavior and harassment of Respondent's employees after being terminated from employment. The Secretary adopted the ALJ's recommendation that the Complainant's complaint be dismissed. The Secretary wrote:

That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints. . . . Nor is an otherwise protected employee automatically absolved from abusing his status and overstepping the defensible bounds of conduct -- even when provoked. . . . Furthermore, certain forms of "opposition" conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent, and nondiscriminatory basis for adverse action. . . .

In deciding to dismiss the complaint, the Secretary took into account caselaw precedent and the competing interests.

[ Editor's note: The immediate incident leading to the Complainant's being placed on the list was his return visit to the work site nearly three months after his termination of employment to demand a meeting with a Vice-President. During the ensuing meeting the Complainant become irrational and made accusations. The listing continued because the Complainant made repeated phone calls to certain of Respondent's employees, picketed outside the plant, painted messages on the public roadways near several employee's homes, and sent cryptic messages. Also of relevance was the Complainant's behavior prior to termination which included raising his voice in confrontations with supervisors and disobeyance of orders. It should be noted that although the Secretary did not discuss the picketing in this portion of his decision, in a footnote earlier in the decision he had assumed that the picketing was in fact protected activity.]

XI.B.2.b.ii. Horseplay; ineffective supervision; production problems

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

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

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

[Nuclear and Environmental Digest XI B 2 b ii]
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.

XI.B.2.b.ii. Need for close supervision

Where the record established that the complainant had a history of recurring work-related problems and incidents during his one year employment contract with the respondent, both before and after his complaint to the NRC, the evidence demonstrated legitimate, nondiscriminatory reasons for both the decision to discharge the complainant after his one year contract expired, and his being given a below average performance rating. The documented incidents usually involved the complainant's argumentativeness and inability or lack of desire to perform work assignments in a timely manner without close supervision and repeated instructions. The complainant had been orally reprimanded several times.

In addition, the respondent showed legitimate, nondiscriminatory reasons for various discussions and questions raised with the complainant which the complainant alleged were acts of harassment prompted by his NRC complaint. The respondent explained that the conflicts were the result of attempts to find out why the complainant would not follow instructions and why his work was slow. The respondent also showed that the supervisors' treatment of the complainant did not change after the filing of the NRC complaint.

The complainant had complained to NRC that he was denied access to work procedures during working hours, which allegedly was a safety violation.

The complainant failed to establish pretext.

Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y Apr. 18, 1991).

XI.B.2.b.ii. Amount of work being performed

Where eight technicians had been engaged in the preparation of a grievance petition while waiting for work authorization in their assigned area, and had been out of contact with superiors during that time, and were fired immediately upon presentation of the petition, the respondent's stated reasons for the mass firing were completely credible: the company for which the respondent was performing under contract was extremely sensitive about the amount of work contracting employees did and about their being in unauthorized areas.

Pretext was not shown. All eight technicians were fired, many of whom apparently had not expressed concerns about safety matters. The supervisor who actually fired the complainant did not know that the grievance petition contained a safety related complaint. Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. at 9-10.

XI.B.2.b.ii. Legitimate, nondiscriminatory reason for adverse action

Where the record established that there were recurring problems and deficiencies with Complainant's work performance beginning prior to the time he engaged in protected activity, Complainant's superior made efforts to assist Complainant in remedying these problems, performance appraisals were consistent with the feedback Complainant received from his supervisor during the appraisal period, the Respondent successfully demonstrated legitimate, nondiscriminatory reasons for Complainant's unfavorable performance appraisal. Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).

XI.B.2.b.ii. Poor work performance

In Conaway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan. 5, 1993), the respondent presented legitimate, nondiscriminatory reasons for the complainant's termination. The respondent documented the complainant's deficient work performance and violations of company policy (including smoking in the store, turning away customers, running a one-bay store, being overly friendly to female customers, poor attitude and improper dress, and failure to complete inventory sheets) commencing just one month after the complainant was promoted to store manager and prior to any protected activity. In addition, the respondent established that the company's policy of progressive discipline was followed and culminated in termination after the complainant was counselled, reprimanded and placed on probation. Testimony of fellow employees corroborated the respondent's assertions that the complainant's termination was based solely on work performance, and that the complainant bragged about raising safety concerns only as a means of protecting himself from termination. The complainant did not present any evidence of pretext.

XI.B.2.b.ii. Slow work; poor attitude

The respondent articulated a legitimate, nondiscriminatory reason for laying off the complainant where the complainant's foreman testified that the complainant worked slowly on some assignments, did not exhibit the same enthusiasm he once had, and that the other members of the crew were easier to work with.

Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 13.

XI.B.2.b.iii. Being in unauthorized area

V.B.2.b.iii. Reasonable constraints on employees

Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).

Lockert was a quality control inspector at the Diablo Nuclear Power Plant in California who claimed he was terminated in violation of the ERA for conducting protected activity such as industry code research and safety/quality problem reporting. Employer alleged that Lockert was terminated because he twice left his assigned work area without permission in violation of the rules for employees, on one occasion to do industry code research. The Secretary addressed Lockert's argument that termination for doing industry code research is protected and held, with regard to the scope of protected activity, that an employer has the right to condition such research on the employee obtaining permission from his supervisor. See Ad Art, Inc. v. NLRB, 645 F.2d 669, 679 (9th Cir. 1980). Employer's plausible business reason for requiring permission to leave the work area, even to research codes, was to insure adequate quality control coverage. Citing Mackowiack v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984), the court held that an employee is not free to choose the precise manner in which to seek necessary information. Furthermore, Lockert did not rebut the business reason for the permission requirement.

XI.B.2.b.iv. Complainant's lack of emotional stability

In Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994), the Secretary found that merely referring an employee to the Employee Assistance Program does not cause any diminution in the terms or conditions of employment, but that in the instant case, the results of the referral constituted adverse action. The Secretary also found that Respondent adequately explained its reasons for the referral. Various witnesses testified to Complainant's unusual statements and behavior on the job. The Secretary recognized that "the inherent danger in a nuclear power plant justifies [Respondent's] concern with the emotional stability of the employees who work there", and noted that the NRC requires licensed operators of nuclear power plants to ascertain the emotional stability of its employees. Slip op. at 17. Finally, after Complainant was hospitalized after a psychotic episode and it was agreed that Complainant suffered from bipolar affective disorder, there was ample reason not to permit Complainant to return to work at Respondent's nuclear power plant.

[Nuclear and Environmental Whistleblower Digest XI B 2 b iv]
COMPLAINANT'S BEHAVIOR; BALANCING TEST

In a dual motive case, the ALJ found in Smalls v. South Carolina Electric & Gas , 2000-ERA-27 (ALJ July 11, 2001), there was evidence that, in addition to discriminatory motive, Complainant was given an unsatisfactory performance evaluation in part based on the need to improve his interpersonal and communication skills. The ALJ found that although Complainant was abrasive and confrontational and frequently accused other of lying, he had not been shown to have used obscene language, trespassed, made threats, or exhibited other erratic behavior, and that the accusation of lying were intrinsically connected to his whistleblowing activity -- his belief that others were lying and conducting a cover-up. Noting that there is a balancing test employed when determining whether a complainant's behavior was so egregious so as to fall outside statutory protection, the ALJ found that the permissible and non-permissible motives for Complainant's discharge in the instant case could not be separated -- and thus Employer had not shown by clear and convincing evidence that it would have given Complainant a less-than-satisfactory performance rating in the absence of his protected activity.

[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE, NONDISCRIMINATORY REASONS FOR ADVERSE EMPLOYMENT ACTION; RESTRUCTURING AND LAYOFFS

In Adornetto v. Perry Nuclear Power Plant , 1997-ERA-16 (ARB Mar. 31, 1999), the only evidence of a causal relation between Complainant's protected activity and his layoff was temporal proximity. Respondent presented credible evidence that the decision to lay off Complainant was the result of a general, long-term, company-wide restructuring and downsizing.

The ARB held that selection of Complainant was based on a legitimate, nondiscriminatory reason his lower performance rating in comparison with other employees in his unit. Complainant had been ranked last in his unit in the most recent annual forced rankings of employees, with similar low rankings in earlier years. The ARB also found legitimate, nondiscriminatory reasons in that Complainant was not highly motivated, spent a lot of time in non-work related conversations, and had to be checked constantly to make sure he was completing his assignments.

[Nuclear & Environmental Digest XI B 2 a]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; REORGANIZATION OF HIRING PRACTICES

In Holtzclaw v. Secretary of Labor , No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held that Respondent stated a legitimate nondiscriminatory reason for not renewing Complainant's employment agreement based on its desire to reorganize its hiring practices. Complainant was a federal EPA employee who had been "loaned" for a period of two years to the Commonwealth of Kentucky under an Intergovernmental Personnel Act agreement. Kentucky declined to renew Complainant's contract because, inter alia , there was a foreshadowing of a change in administration in the state government, and therefore there was a concern that federal/state employment agreements should not be used for continuing projects and initiatives; rather such positions should be filed by state employees.

[Nuclear & Environmental Digest XI B 2 b iv]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; PSYCHOLOGICAL FITNESS FOR UNESCORTED ACCESS

In Ross v. Florida Power & Light Co. , 1996-ERA-36 (ARB Mar. 31, 1999), the ARB found that Respondent conclusively established that it suspended Complainant for a legitimate, nondiscriminatory reason complaints from co-workers because of troubling behavior (veiled threats to kill people), and that it terminated Complainant because he had failed to find another position at the plant or clear the bar placed on his access to the secured area of the facility.

[N/E Digest XI B 2 b iv]
LEGITIMATE NON-DISCRIMINATORY GROUNDS FOR DISCHARGE; DISCHARGE UNREASONABLE OR ERRONEOUS FOR OTHER REASONS

Even assuming that a complainant's confrontation with a supervisor was a protected internal complaint because the supervisor's actions might have affected quality or safety matters, the ARB in Abraham v. Lawnwood Regional edical Center , 96-ERA-13 (ARB Nov. 25, 1997), held that Respondent was still free to discharge Complainant for his misbehavior towards the supervisor. The ARB held that "[a]n employee's insubordination towards supervisors and coworkers, even when engaged in protected activity, may be justification for termination." Abraham , 96-ERA-13 @ 4-5 (citations omitted).

Complainant in Abraham also argued that Respondent's decision to discharge him was improper because of the supervisors inappropriate choice of Complainant's work station for the confrontation, her alleged fabrications of the incident, and Respondent's faulty investigation of her charges. The ARB observed that resolution of these matters in Complainant's favor would not establish by a preponderance of the evidence that he was discharged for protected activities, but only that his discharge was unreasonable or flawed as a matter of sound management practice. The ARB agreed with the ALJ's explanation that DOL's jurisdiction over an ERA whistleblower complaint is limited to determining whether the complainant's discharge was based on his protected activities not whether his discharge was unreasonable or erroneous for other reasons. See also Kahn v. U.S. Secretary of Labor , 64 F.3d 271, 280-81 (7th Cir. 1995).

XI.B.2.b.iv. Discharge even if partial motivation based on protected activity

In Couty v. Arkansas Power & Light Co., 87- ERA-10 (Sec'y Feb. 13, 1992), the employer articulated legitimate business reasons for the discharge of the complainant, such as the complainant's abusive, disruptive, profane and threatening behavior towards supervisors on at least three occasions. Furthermore, the employer proved that it would have discharged the complainant even if the complainant had demonstrated that the employer was motivated in part by the complainant's protected activity. The Secretary cited Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1988) (plurality opinion) in regard to the employer's burden to disprove that the complainant would have been discharged even if he had not engaged in protected activity.

XI.B.2.b.iv. Behavior not appropriate to workplace

A verbal confrontation with a supervisor in the context of protected activity, which involves the use of abuse and obscenities far exceeding the bounds of behavior appropriate to the workplace, may justify discipline if the employee's conduct was so extreme or egregious as to take it outside the pale of protected activity. NLRB v. Clark Manor Nursing Home Corp., 671 F.2d 657 (1st Cir. 1982) (union activist who hurled obscenities and abuse upon anti-union employees after the union lost an election was justifiably discharged); NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1030 (6th Cir. 1974) (employee's reference to company's president as a "son-of-a- bitch" not egregious or out of context in a labor struggle); Acme-Arsena Co. v. NLRB, 804 F.2d 359 (6th Cir. 1986) (discharge of union steward for using vulgar language was not justified when use of profane language was not egregious conduct that exceeded the bounds of protected activity).

Where the complainant had earlier in the morning informed the respondent of his contact with the Environmental Protection Agency, and was confronted later when called away from taking pictures of alleged environmental hazards, his stream of obscene invective in which he informed the respondent how much trouble he had created for the respondent, his behavior was so beyond the bounds of behavior appropriate to the workplace that the complainant failed to prove that the respondent's firing him for that behavior would have been mere pretext.

The Secretary quoted Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986), in which the court ruled that "[a]busive and profane language coupled with defiant conduct or demeanor justify an employee's discharge on the grounds of insubordination" even though the employee had also engaged in protected activity under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851.

Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y Oct. 6, 1992).

XI.B.2.b.iv. Argumentativeness

The complainant had complained to NRC that he was denied access to work procedures during working hours, which allegedly was a safety violation.

The complainant failed to establish pretext.

Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y Apr. 18, 1991).

XI.B.2.b.iv. Belief that complainant assaulted a co- worker

XI.B.2.b.iv. Threatening behavior

In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), the Respondent articulated a legitimate, nondiscriminatory reason for the adverse actions by explaining that it followed the established fitness for duty program when it ordered the Complainant to submit to a drug and alcohol screen and a psychological evaluation and suspended him with pay pending the results of the evaluations. The Respondent further explained that, consistent with past practice, it issued a written reprimand and ordered a one day suspension of the Complainant's pay because the threat against corporate executives was an inappropriate behavior.

XI.B.2.b.iv. Complainant's lack of emotional stability

XI.B.2.b.iv. Abusive or threatening behavior

See Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986), casenoted at XI.C.2.b., in regard to a complainant's obscene language and abusive conduct as grounds for discharge.

XI.B.2.b.iv. Complainant's abusive or threatening behavior

XI B 2 b v Misuse of company property

Where the Complainant made unauthorized use of a company car to travel from New York State to Washington, D.C. to "confer" with the special counsel for the Congressional committee with oversight responsibilities for the energy industry and the NRC, the Secretary indicated that he agreed with the ALJ's finding that a two-day docketing of pay was not motivated by any protected activity. Norman v. Niagara Mohawk Power Corp., 85-ERA-35 (Sec'y Apr. 19, 1995) (citing Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec'y Mar. 17, 1995) (employer may take action against employees who engage in conduct that may properly be characterized as improper or disruptive, even when they are engaged in otherwise protected activity).

[Nuclear & Environmental Whistleblower Digest XI B 2 b v]
LEGITIMATE, NONDISCRIMINATORY REASON; UNAUTHORIZED USE OF MAILING LIST; DISRUPTION CAUSED BY CIRCULATING UNFOUNDED ALLEGATIONS

In Williams v. Baltimore City Public Schools System , ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), Complainant was a mathematics teacher who alleged that she was suspended and later dismissed for reporting numerous environmental safety and health complaints to both the school system and to government agencies. The ARB affirmed the ALJ's finding that, although Complainant had engaged in many activities that the Acts protect, Complainant was not engaged in protected activity when she mailed a letter to students' parents erroneously stating that water in one of the schools contained lead and circulated similar letters to staff, students, and parents containing unfounded and sensationalized allegations about lead and asbestos hazards at three other schools. The ARB also affirmed the ALJ's finding that Respondent's proffered reasons for suspending and dismissing Complainant B her unauthorized use of the names and addresses of persons to whom she sent the letters and the disruption in the school system caused by circulating the unfounded allegations B were legitimate and nondiscriminatory, and were not shown to be a pretext for discrimination.

[Nuclear & Environmental Digest XI B 2 b v]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; COMPLAINANT'S ACCESSING E-MAIL OF OTHER WORKERS

In Duncan v. Sacramento Metropolitan Air Quality Management District ,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended decision that a five-day suspension of Complainant was motivated solely by Respondents "legitimate interest in ensuring the confidentiality of ... sensitive personal information in the computerized files of its chief administrative official...." Slip op. at 38. The ALJ found that although the employee whose e-mail files had been accessed had not taken steps to put security on the files, "she nonetheless had a reasonable expectation that the privacy of her e-mail files would be maintained." Slip op. at 37. The ALJ rejected Complainant's argument that the absence of written rules prohibiting employees from accessing other workers' e-mail and the failure of the employee whose e-mail had been accessed to put security on her e- mail files, eliminated any privacy interest in that e-mail. The ALJ concluded that "such an argument is akin to contending that an employee is free to search the desks, briefcases or purses of any co-worker who forgets to lock an office door or desk drawer." Slip op. at 37.

XI.B.2.b.v. Legitimate, nondiscriminatory reason for adverse action; pretext

The respondent articulated a legitimate, nondiscriminatory reason for placing a disciplinary letter in the complainant's file where the complainant had sent a letter threatening a libel suit to a vendor who had complained about the complainant's conduct while representing the respondent. The complainant had a company secretary type the letter and copied the letter on a division manager of the respondent. These actions gave the letter some "official trapping" that implied that respondent was involved, and that the letter was more than a personal matter between the complainant and the vendor's president. Helmstetter v. Pacific Gas & Electric Co., 86- SWD-2 (Sec'y Sept. 9, 1992).

The complainant failed to establish that this reason was a pretext for discrimination where, inter alia, the respondent reasonably called a meeting with the complainant to discuss the incident even though other topics concerning the complainant were also brought up at the meeting, and the respondent reasonably took no action to investigate the vendor's allegation of rudeness where it appeared that the respondent's managers did not believe the accuser.

XI B 2 b vi Disruption of workplace

A Complainant's repeated failure to complete work assignments, lingering after his shift was over, unauthorized use of hotel equipment to view a pay-per-view television event, and attempt to give a bad impression of the hotel to guests and a new employee, were all non-pretextual legitimate management concerns for which the Respondent would have discharged Complainant, regardless of his engagement in any protected activity.

Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar. 16, 1995).

[Nuclear & Environmental Whistleblower Digest XI B 2 b vi]
LEGITIMATE, NONDISCRIMINATORY REASON; UNAUTHORIZED USE OF MAILING LIST; DISRUPTION CAUSED BY CIRCULATING UNFOUNDED ALLEGATIONS

[N/E Digest XI B 2 b vi]
MOTIVATION; CRITICISM OF COMPLAINANT AS NOT BEING A "TEAM PLAYER"

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), Complainant contended that his supervisor's criticism of Complainant as not being a "team player" has a special meaning under whistleblower law. Complainant was hired as an environmental coordinator. The ARB, however, found that the supervisor's basis for using that expression -- that Complainant was uncooperative and disrespectful -- was reasonable and nondiscriminatory under the facts of the case.

[N/E Digest XI B 2 b vi]
RETALIATORY MOTIVE; EMPLOYMENT ACTIONS BASED ON COMPLAINANTS FILING OF CIVIL ACTION

In McCafferty v. Centerior Energy , 96-ERA-6 (ARB Sept. 24, 1997), six Complainants (employees of an outage contractor) had filed a civil action in U.S. District Court pursuant to the Price-Anderson Act (which is part of the Atomic Energy Act) seeking $30 million dollars in damages relating to an incident in which they had been unintentionally exposed to radiation at one of Respondent's facilities. The levels of radiation exposure had been determined by an NRC investigation not to exceed limits set by the NRC. Later, Respondent discovered that one of the Complainant's had been hired to perform outage work at another facility, which lead one of Respondent's officials to issue instructions not to hire any of the Complainants during the pending litigation. That official indicated that he took Complainants at their word when they claimed that they were debilitated and suffered emotional distress as a result of the radioactive intake. The official did not interview any of the Complainants because:

I didn't feel I had a need to. I read the complaint and I thought the complaint was clear enough that someone that needed 30 million dollars to compensate for a low level of radiation and that they had debilitating and emotional stress over that I didn't think I needed that kind of person working the outage for me.

Thereafter, Complainants filed the instant ERA whistleblower complaint.

The ARB found that Respondent's actions were direct evidence of retaliation, and turned to the question of whether Respondent established by clear and convincing evidence that it would have taken the same action against Complainants even if they had not filed their Price-Anderson Act lawsuit. Respondent maintained that it had legitimate concerns: Complainants were unwilling to work without respirators; were suffering severe and debilitating emotional distress resulting from radiation exposures the federal regulations allow and that they would likely receive again; and, might refuse to perform certain work, which conduct would disrupt Respondent's strict outage schedule. Respondent argued that these are business-related concerns, and none involves intent to retaliate against or punish Complainants for their tort lawsuit.

The ARB stated that it was significant that Respondent's did not interview Complainants prior to taking the action to bar them, nor take any other action to determine if their past behavior was disruptive or predictive of disruptive behavior in the future. Moreover, Complainants had continued to work the outage at the facility where they were exposed to radiation in an appropriate manner, and were told they would be welcomed back. There was no proof in the record indicating that Complainants were unwilling to work without respirators. The ARB found that there was no basis to assume that Complainants would refuse to follow work instructions in a properly surveyed and controlled environment. In short, Respondent's speculations about how Complainants would act in the future were just that -- speculations. The ARB found the real basis for barring Complainants was clearly that Respondent did not want to provide work for persons who had sued it. Because the suit was protected activity, Respondent's motive was retaliatory.

ADVERSE EMPLOYMENT ACTION; DISCHARGE BASED ON BELIEF THAT EMPLOYEE ENGAGED IN MISCONDUCT; EFFECT OF ERROR IN THAT BELIEF
[N/E Digest XI B 2 b vi]

In Jackson v. Ketchikan Pulp Co. , 93-WPC-7 and 8 (Sec'y Mar. 4, 1996), the Respondent's belief that the Complainants had engaged in sabotage played a major role in its decision to fire them. In this respect, the Respondent only needed to prove that the managers who made the decision to discharge had a reasonable and good faith belief that the Complainants committed sabotage. See Lockert v. United States Dept. of Labor , 867 F.2d 513, 519 (9th Cir. 1989) (employer may discharge an employee who has engaged in protected activity if employer has reasonable grounds to believe employee engaged in misconduct and decision was not motivated by protected conduct).

The Secretary pointed out that there are different rules on this question under the whistleblower laws and Title VII on one hand, and the NLRA on the other. Under the former laws, a reasonable, good faith belief that the employee engaged in misconduct is a legitimate ground for discipline even if that belief is factually erroneous. Under the NLRA, employers bear the risk that the NLRB may find that the employee did not in fact commit the offense, in which case the employee cannot be discharged regardless of the employer's good faith belief.

In Jackson , the evidence in the case invoked the dual motive analysis, but the Secretary agreed with the ALJ that the Respondent carried its burden of proving that it would have fired the Complainant even if he had not engaged in any protected activity.

XI B 2 b vi MOTIVE; NEGATIVE PUBLICITY

An employer may not take adverse action against an employee whose protected reports to the news media cause negative publicity. Hoffman v. Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995) (Complainant was not rehired because, after his layoff, he went to the newspapers, causing general hysteria about asbestos in school roofing materials).

XI.B.2.b.vi. Disruption of the workplace

In Mosbaugh v. Georgia Power Company, 91-ERA-1 & 11 (ALJ Oct. 30, 1992), the Respondent's placed the complainant on leave and ultimately discharged him after learning that the complainant had made hundreds of hours of covert tape recordings at the work site. The ALJ found that "assuming [the complainant's] tape recording activity was protected at the outset, its continuation and scope became so egregious and potentially disruptive to the workplace that it lost any protected status it may have once possessed." The ALJ noted the similarity between this case and Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), in which the complainant had misappropriated confidential company records.

XI B 2 b vi Disruption of workplace/unauthorized activities

Respondent rebutted Complainant's prima facie case when it demonstrated that Complainant was removed from his office at a facility where he was conducting grant-funded research because of the turmoil and disruption he was causing that was not related to any protected activity, he harassed co-workers (which led to their formal request for his removal), and his advertisement in a newspaper seeking research patients without the prior authorization of the clinic. Complainant failed to present evidence of pretext. Rainey v. Wayne State University, 89-ERA-48 (Sec'y Apr. 21, 1994).

XI.B.2.b.vii. Obtaining job with fraudulent credentials

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).]

XI B 2 b viii Insubordination distinguished from impulsive behavior

Even when an employee has engaged in protected activities, employers legitimately may discharge for insubordinate behavior, work refusal, and disruption. On the other hand, it is normal for employees engaging in protected activities to exhibit impulsive behavior; such employees may not be disciplined for insubordination so long as their behavior is lawful and their conduct is not indefensible in its context. Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994) (Secretary adopted ALJ's finding that Complainant's behavior did not impede the orderly operation of Respondent's business activities).

[Nuclear and Environmental Whistleblower Digest XI B 2 b viii]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; OBTAINING UNAUTHORIZED ACCESS TO MAILING LIST

In Williams v. USDOL , No. 03-1749 (4th Cir. Nov. 18, 2005) (per curiam) (unpublished) (case below ARB No. 01-021, ALJ No. 2000-CAA-15), the Complainant was a school teacher and the Respondent was a school system. The Complainant became concerned that certain school buildings contained unsafe levels of lead and asbestos, and made complaints to regulatory groups and aired her concerns in public forums. After being discharged for the manner in which she had aired her concerns, the Complainant filed employee protection complaints with the Department of Labor under the SDWA, TSCA, CAA, SWDA, CERCLA and FWPCA. The Fourth Circuit Court of Appeals found that substantial evidence supported the Department of Labor's dismissal of the complaint. The court agreed with the Department that, although the Complainant initially engaged in protected activity in raising concerns about lead in schools, important steps had been taken at each school in response to those concerns to ensure the safety of students and staff. The court wrote that "once her concerns were addressed ... it was no longer reasonable for her to continue claiming that these schools were unsafe and her activities lost their character as protected activity." Slip op. at 15. In addition, the court affirmed the Department's finding that even if the Complainant's actions were protected activity, the Respondent had raised a legitimate, non-retaliatory and nondiscriminatory reason for suspending and later dismissing the Complainant -- that she had obtained unauthorized access to the list of names and addresses of parents. One member of the Fourth Circuit panel dissented.

[Nuclear and Environmental Whistleblower Digest XI B 2 b viii]
LEGITIMATE, NON-DISCRIMINATORY REASON FOR DISCIPLINE; INSUBORBINATION; "LEEWAY FOR IMPLUSIVE BEHAVIOR PRINCIPLE" DOES NOT APPLY TO DELIBERATE AND REASONED SARCASM AND SATIRE IN RAISING COMPLAINTS

In Sayre v. Veco Alaska, Inc. , ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), the Complainant argued that the Respondent could not discipline her for the manner in which she engaged in protected activity, arguing that she had been provoked to use sarcasm and satire in her e-mails, and pointing out that she had had not been malicious, or obscene, or violent. The Complainant relied in this respect on Kenneway v. Matlack, Inc. , 1988-STA-20, slip op. at 6 (Sec'y June 15, 1989), in which the Secretary had stated that there was leeway for implusive behavior. The ARB noted that it had recently held that this leeway for implusive behavior standard applies to situations where the complainant is emotionally motivated and the conduct is temporary and uncalculated. Harrison v. Roadway Express, Inc. , ARB No. 00-048, ALJ No. 1999-STA-37, slip op. at 15 (ARB Dec. 31, 2002), aff'd on other grounds Harrison v. Administrative Review Board , 390 F.3d 752, 759 (2d Cir. 2004). In contrast, the Complainant's conduct in the instant case was more deliberate and reasoned that implusive and uncalculated -- conduct which does not qualify for the "leeway" principle. Since insubordination toward supervisors and coworkers, even when engaged in protected activity, is justification for termination, the Complainant had properly been disciplined for her discourteous and insubordinate manner.

ADVERSE ACTION; REQUIREMENT THAT COMPLAINT FOLLOW AGENCY POLICIES REGARDING COMMUNICATION WITH THE PUBLIC

See Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), casenoted at XIII B 18, infra .

[Nuclear & Environmental Whistleblower Digest XI B 2 b viii]
ATTORNEY CLIENT PRIVILEGE/CONFIDENTIALITY

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

In Willy v. The Coastal Corp. , ARB No. 98 060, ALJ No. 1985 CAA 1 (ARB Nov. 6, 2002), the ARB ordered briefing of the application of common law principles of attorney client privilege in the context of federal whistleblower protection statutes, despite a long procedural history of the case. In Willy , much of Complainant's case was based on divulging a memorandum he had written while in house counsel for Respondent. Respondent argued that use of that memorandum violated evidentiary rules of attorney client privilege/confidentiality and the ethical duty of client confidentiality.

[Nuclear & Environmental Whistleblower Digest XI B 2 b viii]
INSUBORDINATION

In Duncan v. United States Secretary of Labor , No. 01 71647 (9th Cir. May 30, 2003) (unpublished) (available at 2003 WL 21259780) (case below ARB No. 99 011, ALJ No. 1997 CAA 12), the Ninth Circuit found that substantial evidence supported the ALJ's finding that Complainant's insubordination, rather than retaliation for whistleblowing activity, was the cause of the Employer's adverse employment decisions.

[Nuclear & Environmental Digest XI B 2 viii]
CAUSATION; LEGITIMATE REASONS FOR ADVERSE EMPLOYMENT ACTION

In Stephenson v. NASA , ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), Complainant had questioned the safety of methods used to test and sterilize devices used to measure the blood pressure of astronauts (and test subjects) for space shuttle missions. At one point, Complainant took matters into her own hands, and, without authorization, moved devices used to measure blood pressure from a clean room into the hall outside next to the trash, thus breaking the chain of traceability and making the devices unusable for an upcoming space shuttle mission. As a result, Respondent had to pay for the destruction of the devices as flight hardware, and was faced with a very short time period to obtain replacements. NASA managers universally reacted to Complainant's action in a negative fashion, which the ARB found supportive of a conclusion that there was a legitimate reason for the adverse employment actions taken against Complainant e.g. , assignment of duties that did not include work on devices that would be used on the space shuttle. The ARB found that Complainant's subsequently being barred from the Space Center was not out of line because she had at least apparently -- disobeyed a directive not to visit the clean room while the devices were being worked on. The ARB noted that NASA employees testified that they admired Complainant's "gumption" in raising the issue, but condemned her unauthorized property disposal. Finally, the ARB noted that NASA had treated Complainant's concerns seriously and promptly investigated them. On this record, the ARB concluded that NASA had not taken adverse employment action based on Complainant's protected activity.

[Nuclear & Environmental Digest XI B 2 b viii]
DUAL MOTIVE ANALYSIS; RESPONDENT'S BURDEN OF PROVING THAT IT WOULD HAVE DISCHARGED COMPLAINANT EVEN IF COMPLAINANT HAD NOT ENGAGED IN PROTECTED ACTIVITY; EMPLOYER MAY ASK QUESTIONS OF EMPLOYEE ABOUT HIS OR HER SAFETY CONCERNS

In Saporito v. Florida Power & Light Co. , 1989-ERA-7 and 17 (ARB Aug. 11, 1998), the only issue was whether Respondent proved that it would have discharged Complainant even if he had not insisted on his right to reveal his safety concerns only to the NRC. In an earlier decision, the Secretary of Labor had held that "[a]n employee who refuses to reveal his safety concerns to management and asserts his right to bypass the chain of command' to speak directly with the Nuclear Regulatory Commission is protected [from discrimination under the ERA]." The Secretary had found Respondent violated the ERA when it discharged Complainant for three reasons, one of which was his protected refusal to reveal his safety concerns to managers and his insistence on speaking directly to the NRC.

The ARB agreed with the ALJ's remand determination that Respondent proved that it would have discharged Complainant for his insubordination in refusing to attend a meeting with the Site Vice President and refusing to comply with an order to be examined by the designated company doctor, even if he had not engaged in earlier protected activity.

In regard to Complainant's refusal to meet with the Site Vice President, the ARB found it significant that despite a clear act of insubordination, Respondent took measures that were consistent with discipline meted out to other employees in similar circumstances. The ARB rejected Complainant's argument that by refusing to attend the meeting, he was insisting on his right to reveal safety concerns only to the NRC because (1) at the time, Complainant never stated this as a reason for not attending the meeting, and (2) the mere fact that one of the Vice President's objectives in meeting with Complainant was to ask again about Complainant's safety concerns did not insulate Complainant from all directives given by his employer. The ARB found that the instant scenario was not a situation in which an employee's alleged insubordination was "the result and manifestation of his protected activity." The ARB held, however, that if the Vice President had again asked about Complainant's safety concerns, Complainant then might have been justified in refusing to reveal those concerns. The ARB noted that at the time of the attempted meeting, Complainant had already started to cooperate with Respondent's outside investigators; thus Complainant's refusal was an abrupt change.

Complainant cited NRLA authority for the proposition that the order to attend a meeting tended to coerce Complainant into refraining from exercising his rights under the Act. The ARB found that one of the factors to be considered is whether the employer had a valid purpose in questioning the employee, and that in the instant case, the Vice President clearly had a valid purpose in wanting to question Complainant about his safety concerns: to learn whether any of those concerns had immediate significance for public health and safety. The ARB held that the attempt to question Complainant was not an attempt to coerce Complainant to refrain from contacting the NRC directly about his safety concerns.

In regard to the refusal to be examined by a company doctor, the ARB held that Respondent had legitimate reasons to require Complainant to submit to such an examination: that Complainant had refused to attend a meeting with the Vice President because he claimed to be sick and then took extended sick leave for medical disorders which he asserted were related to stress.

XI.B.2.b.viii. Refusal to follow safety procedure

In Wood v. Yeargin Construction Co., 79-ERA-3 (ALJ Oct. 5, 1979), adopted (Sec'y Nov. 8, 1979), Complainant was properly fired when, in a meeting held to discuss Complainant's testing of his tools for radiation and he refusal to have the tools tested by a member of the Radiation Control and Test (RC & T) Group (as well as verbal abuse of co-workers), Complainant challenged his supervisor to state which work rule he violated because he had used the tools in a non-contaminated area, and did not feel it was reasonable to have to wait for a RC & T technician.

At the hearing Complainant indicated that he was rightly fired but for the wrong reason, that is, he admitted he should have been fired for cussing. The ALJ found that Complainant was fired because he violated NRC regulations, and because "he indicated by work and deed that he would not be bound by the rules." The ALJ took into consideration Complainant's past history of "gamesmanship" at the plant in challenging safety regulations and the fact that Complainant's complaint did not allege any violation of law by Respondent.

XI.B.2.b.viii. Insubordination

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.

[Editor's note: Although this dismissal was based on failure to establish a prima facie case, the casenote is also relevant to the reason for discharge.]

XI.B.2.b.viii. Insubordination

Respondent articulated a legitimate, nondiscriminatory reason for the adverse action where its witnesses testified about a number of incidents in which Complainant raised his voice, showed anger, and was insubordinate at work (including refusing to review a statistical report, and refusing to meet with a manager), and Respondent informed Complainant that he was discharged based on "performance and behavior, which includes . . . repeated acts of insubordination." Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).

XI B 2 b viii Work refusal

In Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), the court affirmed the Secretary's determination that the Complainant was discharged for proper reasons when he refused to work on a project because he did not like the protocol. The court cited the Secretary's work refusal analysis in Pennsyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984).

XI B 2 b viii "Insubordination" nothing more than result and manifestation of protected activity

Even when an employee has engaged in protected activity, an employer may legitimately discharge the employee for insubordinate behavior, work refusal, and disruption.

In McDonald v. University of Missouri, 90-ERA-59 (Sec'y Mar. 21, 1995), the Respondent contended that it was the manner in which the Complainant made her complaints, not the complaints themselves that led to her discharge. The Secretary pointed out, however, that the Complainant never refused work or attempted to disrupt others in their work, except where actual violations were at issue. Specifically, the Complainant, a Postdoctoral Associate, asked a graduate student to be barred from a research lab for violating NRC regulations; such a request did not deny ERA protection merely because it led to tension in the lab between the Complainant and the graduate student. The Secretary found the alleged misconduct to be nothing more than the result and manifestation of her protected activity, which does not remove statutory protection.

XI B 2 b ix Failing to observe established channels

Asserted legitimate, nondiscriminatory reasons for taking adverse action against an employee that are the manifestations of a failure to observe channels (which is protected activity) do not establish a respondent's burden of articulation. Thus, in West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995), the Secretary rejected as reasons the Complainant lack of direct communication with management, and "low company morale" resulting from the Complainant's communication with a emissions coordinator from the company from which the Respondent had contracted to provide emissions monitoring.

[Nuclear and Environmental Whistleblower Digest XI B 2 b ix]
CAUSATION; TERMINATION FOR GOING OUTSIDE CHAIN OF COMMAND ONLY UNLAWFUL WHERE THE RESPONDENT HAD BEEN UNRESPONSIVE TO SAFETY CONCERNS OR WHERE THE COMPLAINANT REASONABLY FEARED REPRISAL

In Sayre v. Veco Alaska, Inc. , ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), the Complainant had been terminated for creating hostility with co-workers. One of the ways cited by the supervisor who made the termination decision in which hostility had been created was the Complainant's practice of telling the company with which her employer had been contracted to supply engineering services about her safety concerns rather than her employer directly. The Complainant argued that she had been unlawfully terminated under Dutkiewicz v. Clean Harbors Envtl. Servs, Inc. , ARB No. 07-090, ALJ No. 1995-STA-34, slip op. at 7 (ARB Aug. 8, 1997), aff'd sub nom., Clean Harbors Envtl. Servs., Inc. v. Herman , 146 F.3d 12, 24 (1st Cir. 1998), in which the Board had held that "an adverse action taken because an employee circumvented the chain of command to raise a safety issue would violate the employee protection provision." The Board rejected this argument and distinguished Dutkiewicz : "The environmental whistleblower protections do not deprive employers of the right to require employees to tell them immediately about hazardous conditions. This is not a case in which the employee expressed protected safety or environmental concerns outside the chain of command because the company had been unresponsive to the employee's complaints or because the employee reasonably feared reprisals if she took her concerns to supervisors." Sayre , slip op. at 11 (citation omitted).

[Nuclear & Environmental Whistleblower Digest XI B 2 b ix]
FAILURE TO FOLLOW CHAIN OF COMMAND IS NOT A LAWFUL REASON FOR ADVERSE ACTION

"[I]t is a long standing principle of whistleblower case law, established by the Secretary and further developed by this Board and the United States Courts of Appeals, that it is a prohibited practice for an employer to retaliate against an employee for not following the chain of command in raising protected safety issues. This chain of command principle is as applicable to communications with a regulating agency like the DOE as it is to the raising of nuclear safety concerns within the employer's organization." Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002) (citations omitted).

[Nuclear and Environmental Digest XI B 2 b ix]
CHAIN OF COMMAND

Under the whistleblower protection provisions of the ERA and similar laws, an employee may not be disciplined for failing to observe an established chain of command when making safety complaints. Fabricius v. Town of Braintree/Park Dept. , 1997-CAA-14 @ 4 (ARB Feb. 9, 1999).

[N/E Digest XI B 2 b ix]
PROTOCOL TO NOTIFY MANAGEMENT BEFORE INVITING INSPECTOR TO WORKSITE

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), Complainant argued that animus toward protected activity was shown by his superiors' suggestion that Complainant view a film to refresh his memory on the company's procedure for responding to an inspection by a government agency. This suggestion was a result of one supervisor's being upset about Complainant's failure to follow protocol by notifying a member of management before inviting an inspector into the building. The ARB found that this did not show animus where Complainant did not raise his safety concerns with the inspector, did not show that the supervisor was perturbed because of any comment that might have been mad to the inspector, or that the purpose of the protocol was to prevent protected communications between employees and inspectors.

The ARB cautioned, however, that "... an employer may not, with impunity, fault an employee for failing to follow the chain-of-command in raising safety or environmental issues. Saporito v. Florida Power and Light Co., Case No. 89-ERA-7, 17, Sec. Decs., June 3, 1994, and Feb. 16, 1995; Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991)." Slip op. at 8 n.9.

[N/E Digest XI B 2 b ix]
REFUSAL TO DIVULGE SAFETY CONCERNS TO RESPONDENT

In Saporito v. Florida Power & Light Co. , 89-ERA-7 and 17 (ALJ Oct. 15, 1997), the Secretary had remanded part of the case for consideration under the dual motive analysis. On remand, the matter was reassigned to a different ALJ because the original presiding ALJ had retired. The newly assigned ALJ reviewed the entire record in detail, and concluded that Complainant had engaged in three acts of insubordination that would have resulted in his discharge, even in the absence of protected activity. The ALJ, however, explained that the first act of insubordination could not be considered by him because it was removed from the ALJ's mandate on remand by both the Secretary's original remand order and the Secretary's order denying Respondent's motion for reconsideration. Specifically, the Secretary had held that Respondent had "violated the ERA when it later discharged [Complainant], among other reasons, for refusing to obey [his supervisor's] order to reveal his safety concerns." The Secretary had held that Respondent's stated rationale for the order to reveal safety concerns to be "disingenuous". The Secretary confirmed this ruling in the order denying Respondent's motion for reconsideration, to wit: "I find no basis to reconsider the June 3 decision that disciplining an employee for refusing to reveal safety concerns to management when he is about to report his concerns to the NRC is a violation of the ERA."

The ALJ, however, believing it to be his judicial responsibility to note his finding, observed that the evidence of record indicated to him that the supervisor reasonably believed that Complainant had an "obligation to divulge his safety concerns to the licensee, the entity primarily responsible for the safe operation of the nuclear plant." The ALJ recognized that "it should not be possible for a respondent to vitiate its action which violates the ERA by merely arguing that is mistakenly believed its actions were lawful." Nonetheless, in the instant context:

The inquiry should more properly focus upon whether a respondent committed those actions in retaliation for a complainant having engaged in protected activity. If a respondent can establish that it took particular action based on a reasonable belief as to its a safety obligation, it should matter not that the belief subsequently turns out to be legally incorrect because that respondent would have shown that it did not act against complainant in retaliation for his engaging in protected activity.

LEGITIMATE BUSINESS REASONS; CHAIN-OF-COMMAND REQUIREMENTS AY UNDERMINE PUBLIC HEALTH AND SAFETY
[N/E Digest XI B 2 b 9]

In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995), the ALJ found that the Complainant's former supervisor gave negative employment references, not because of the Complainant's protected activity as an environmental protection specialist (the ALJ noting that the supervisor was himself concerned with environmental problems and had conveyed to the Complainant his intent to seek solutions and the existence of plans already put into motion), but rather the Complainant's unwillingness to accept the base's Major General's decision to work through the New York State Department of Environmental Conservation rather than involve the National Guard Bureau.

The Secretary rejected the ALJ's analysis, finding that it "would condone an employer mandate that all environmental complaints be handled internally with no recourse to any external regulatory agencies, depending upon what the 'person in charge' determined to be the 'correct route'." Slip op. at 15-16. The Secretary also rejected the ALJ's attempt distinguish other chain-of-command decisions. The Secretary wrote:

[A]n employer may not, with impunity, discipline an employee for failing to follow the chain-of-command, failing to conform to established channels, or circumventing a superior, when the employee raises an environmental health or safety issue.

* * *

Such restrictions on communication -- whether by the 'person in charge' or through adherence to the 'chain-of-command' -- would seriously undermine the purpose of the environmental whistleblower laws to protect public health and safety.

Slip op. at 16-17 (citations omitted).

XI B 2 b ix Insubordination

Where the Complainant and seven other employees had prepared a list of grievances while away from their work site for over one hour -- only the last of which involved a safety issue -- and presented the list to a supervisor, who then merely glanced at the list and immediately discharged all eight employees for insubordination, the Secretary accepted the ALJ's credibility assessment and found that the supervisor did not realize the grievance list contained a safety-related complaint at the time Complainant was discharged, though he had previously discussed all of the issues on the grievance list with the employees. Although Complainant had made safety complaints throughout his five month employment, the Secretary agreed with the ALJ that pretext had not been shown -- that it was inconceivable that all eight employees would be fired in retaliation for Complainant's safety related complaints. Seal v. The American Inspection Co., 92-ERA-6 (Sec'y Mar. 17, 1995), amended (Sec'y Mar.24, 1995).

XI B 2 b ix [new] Bypassing the chain of command

See Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order denying motion for reconsideration), casenoted at XI D 3 d.

XI B 2 b ix Failing to observe established channels

Under the whistleblower statutes, an employee may not be faulted for failing to observe established channels when making safety complaints. West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995).

[Nuclear and Environmental Digest XI B 2 c]
NONRETALIATORY REASON FOR ADVERSE ACTION; MANAGERIAL INCOMPETENCE IS NOT A VALID DEFENSE

In Abdur-Rahman v. DeKalb County , ARB Nos. 08-003, 10-074, ALJ Nos. 2006-WPC-2 and 3 (ARB Feb. 16, 2011), the Respondent filed a motion for reconsideration of the ARB's reversal of the ALJ's decision denying the complaint based on the ALJ's conclusion that the true reason for dismissal of the Complainants' complaints was managerial incompetence rather than protected activity. The Respondent argued that if the ARB had used the substantial evidence standard of review rather than the de novo standard, it would have found in its favor. The Complainants agreed that the substantial evidence standard of review applies to an ALJ's findings of fact, but that what the ARB reviewed de novo was a legal conclusion. The ARB did not decide whether the substantial evidence standard applied, but held that even if it did, it would not compel it to reconsider or change its earlier decision. The ARB stated that its conclusion had been based based on the ALJ's finding that the protected activity was a contributing factor to the Complainants' terminations and his rejection of every other stated non-retaliatory reason. The majority stated that its ruling had been consistent with its previous decisions in which it found "indirect admissions of retaliation when the employer's stated non-retaliatory justifications for adverse action flowed entirely or almost entirely from the protected activity. Stated differently, it is not a valid legal defense to fire employees because a supervisor is incompetent to deal with whistleblowing activities. Given the ALJ's findings in this case, the supervisor's incompetence was clearly not a legitimate, non-retaliatory reason." USDOL/OALJ Reporter at 5-6 (footnotes omitted). One member of the Board wrote a concurring opinion.

[Nuclear and Environmental Whistleblower Digest XI B 2 c]
LEGITIMATE NON-DISCRIMINARY REASON FOR LAYOFF; JOB CAME TO AN END

In Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), PDF | HTM the ARB assumed, for purposes of deciding the Respondent's motion for summary decision, that the Complainant had raised a factual issue about whether he engaged in protected activity, but nonetheless found that the existence of such an issue was not fatal to the Respondent's motion because it was undisputed that the job for which the Complainant had been engaged to perform had come to an end and because it was undisputed that the Complainant lacked the necessary qualifications for the position. In Devine , the Complainant had been engaged as a hazardous waste truck driver and had been dispatched for one or two days of transporting materials from a water purge tank. When the Complainant learned that he did not possess a CPR training requirement, he expressed concern to the Respondent that it had failed to verify that personnel had the required training for assigned tasks. According to the Complainant, when the Respondent ordered him to continue to haul hazardous material, he used his "Stop Work Authority" to shut down the job.

XI.B.2.c. Refusal to rehire based on prior misconduct and the presence of more qualified applicants

In King v. Tennessee Valley Authority, 80-ERA-1 (ALJ Mar. 28, 1980, adopted (Sec'y May 20, 1980), Complainant had been discharged from his job as a painter at a nuclear plant for bringing a firearm onto the project in violation of a posted job rule. Complainant's complaint was based on refused re-employment because of complaints made to the NRC about the quality of certain painting at the plant. The ALJ found, however, that Complainant had been refused re-employment for the legitimate reasons of a past discharge for unsatisfactory conduct in the work area and the presence of more qualified applicants (on a fourth re- application, the applicant pool was smaller and Complainant was re-hired).

[Nuclear and Environmental Whistleblower Digest XI B 2 c]
ADVERSE EMPLOYMENT ACTION/LEGITIMATE NON-DISCRIMINATORY REASONS; REQUIRING UNIQUE DISCLAIMERS ON SCIENTITIFIC PAPERS; FLAWED PEER REVIEW PROCESS; ACTIONS OF SUBORDINATE COLLEGUE; INACTION ON REQUEST FOR INFORMATION ABOUT COMPLAINANT'S QUALIFICATIONS; MONITORING OF WRITINGS WITH POLICY IMPLICATIONS; CONSULTATIONS WITH AGENCY COUNSEL

In Lewis v. Environmental Protection Agency , 2003-CAA-5 and 6 (ALJ June 9, 2004), the Complainant, an EPA scientist, contended that the EPA discriminated against him as a result of his protected activity of publishing articles, making oral presentations and contacting Congress alleging that EPA's policy on sludge was not protective of human health. The Complainant contended, inter alia , that EPA retaliated by requiring that he use unique disclaimers in his writings and speeches, by collaborating against him with his adversaries, by subjecting him to a flawed peer review process, and by disseminating papers that criticized his research and harmed his reputation.

In a detailed recommended decision, the ALJ found that, although the disclaimers requested by EPA may not have been typical of what it required on similar writings, it was not an adverse action because the Complainant had not shown that requiring the disclaimers had an adverse effect or resulted in a tangible consequence, either work related or otherwise. The ALJ wrote that "Although Complainant may have been annoyed at the requests to change disclaimers, annoyance does not reach the level of a material consequence." Slip op. at 56. The ALJ also observed that the proposed changes were accurate and appropriate. The ALJ also found that the Complainant's writings and oral presentations were unique in their level of criticism of EPA policy, and therefore, even if the disclaimers had a tangible job consequence, EPA nonetheless had a legitimate, non-discriminatory reason for requiring such. The ALJ wrote: "EPA has every right to explicitly disclaim endorsement of writings and oral presentations by its employees that significantly criticize EPA policy and even accuse EPA of endangering the public." Slip op. at 56.

In regard to the flawed peer review process, the ALJ determined that Complainant had established no resulting tangible job consequence.

Complainant did establish that a fellow EPA scientist (at a lower grade level) disseminated a "White Paper" which had been prepared by the defendant in a lawsuit in which the Complainant was appearing as an expert witness for the plaintiff. The White Paper was highly critical of Complainant's research regarding an EPA rule on biosolids. The ALJ, however, found that the fellow scientist had no supervisory authority over the Complainant, that the Complainant had not established that supervisors were aware of the dissemination, and that once put on notice of the dissemination, the fellow scientist was counseled. The Complainant contended that he should have been consulted prior to the discipline of the fellow scientist, but the ALJ found that the Respondent's obligation was only to take "prompt remedial action" upon learning of a co-worker's harassing behavior to escape liability -- not to also consult with the Complainant prior to taking the remedial action.

Complainant alleged that EPA violated the whistleblower laws when it failed to respond to inquiries about the White Paper and whether EPA agreed with its contents. The ALJ found that EPA did not have an obligation to respond to such inquiries and even if it did, the Complainant failed to establish a tangible job consequence.

Complainant contended that EPA violated the whistleblower laws when it forwarded all of his scientific and technical writings to headquarters. The ALJ found, first, that the guidance was only to forward writings if it had policy implications, which was consistent with EPA practice generally. Complainant's supervisors also consulted with EPA's Office of General Counsel regarding information they received regarding the Complainant because of his whistleblower allegations. Such consultations were unique to the Complainant. The ALJ found that despite the uniqueness of such consultations, the Complainant had not established that they were adverse employment action, having presented no evidence that such consultations produced tangible job consequences. Moreover, the ALJ concluded that "EPA is entitled to consult OGC to ensure that it is not making discriminatory decisions regarding one of its employees." Slip op. at 65.

[Nuclear & Environmental Whistleblower Digest XI B 2 c]
LEGITIMATE, NON DISCRIMINATORY REASON; COMPLAINANT NOT REHIRED BECAUSE HE DID NOT INTERVIEW AS WELL AS OTHER APPLICANTS

In Higgins v. Alyeska Pipeline Service Corp. , ARB No. 01 022, ALJ 1999 TSC 5 (ARB June 27, 2003), Complainant alleged that he was not hired for a position with Respondent because of his previous protected activities. Complainant and 11 other applicants (from a field of over 100 applicants) were interviewed by telephone by a three member panel. The panel scored the applicants and Complainant was not selected for a personal interview with the senior executive, who limited interviews to the top 4 applicants. The ARB determined that the record convincingly showed that Complainant's performance in the interview was so poor that he would not have advanced to the next level under any variation of the scoring by the 3 panelists. The panelists all had previously worked with Complainant; the ARB observed that Complainant did not object to any member being part of the interviewing panel even though he knew of two members' participation several weeks before the interview.

[Nuclear & Environmental Whistleblower Digest XI B 2 c]
LEGITIMATE NONDISCRIMINATORY REASON; BLACKLISTING; OIG INTERVIEW IN INVESTIGATION RELATING TO FECA CLAIM; PRIVILEGED COMMUNICATION

In Pickett v. Tennessee Valley Authority , ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003), Complainant alleged that Respondent blacklisted him when an OIG investigator visited an employer for whom Complainant had worked part time to ask questions relating to an OWCP request for information about the employment needed to determine its potential effect the amount of disability benefits Complainant received under FECA. Complainant alleged that that the visit was in retaliation for a 1999 whistleblower complaint B that the investigation was an "illegal" investigation of his disability claim, and that the investigator had made blacklisting comments during the visit.

The ARB held that TVA established a legitimate, nondiscriminatory reason for the investigator's interview of the employer, as it was properly authorized as a discretionary function within the scope of his authority as an OIG special agent. TVA also argued that its actions were protected under a qualified privilege. The ARB noted that certain factual circumstances of the case met some of the requirements of the common law privilege in defamation for certain communications, but found that in view of its findings of a legitimate, nondiscriminatory reason for the actions, it was not necessary to decide whether such a privilege would apply.

[Nuclear and Environmental Whistleblower Digest XI B 2 c]
REMOVAL FROM EMPLOYMENT AFTER ELIGIBILITY FOR DISABILITY LEAVE EXPIRED FOUND NOT TO CONSTITUTE UNLAWFUL DISCRIMINATION

In Ilgenfritz v. U.S. Coast Guard Academy , ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant was terminated from employment after he had been unable to perform his job for over a year, and it appeared unlikely that he would ever return to work. Respondent presented testimony from a personnel officer that after an employee is still incapacitated after having been in a leave without pay status for over one year, then it is appropriate to initiate a removal action. Respondent also presented credible testimony that the decision to initiate the removal process was based on the Chief of Public Works' recommendation, and that the Chief made that recommendation based solely on the desire to fill the position with a permanent employee and that it had nothing to do with Complainant's protected activities. On this basis, the ARB found that Complainant's termination was not the result of unlawful discrimination.

[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION; COMPLAINANT'S EXPRESSION OF PERSONAL IDEAS AS STANCES OF EMPLOYING AGENCY

In Holtzclaw v. Secretary of Labor , No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit held that Respondent, a state agency, stated a legitimate nondiscriminatory reason for not renewing Complainant's employment agreement where Complainant on at least three occasions had embarrassed the agency with personal positions fervently expressed by Complainant as departmental stances. The court found that the decision not to renew Complainant's employment agreement was not a muzzling of First Amendment freedoms, but only a curbing of Complainant's effort to portray his own ideas as official positions of the state agency.

[Nuclear & Environmental Digest XI B 2 c]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; LIMITATIONS ON WORK-TIME ASSOCIATION WITH CO-WORKER

In Duncan v. Sacramento Metropolitan Air Quality Management District ,1997-CAA-12 (ALJ Oct. 16, 1998), the ALJ found in his recommended decision that Respondent's directive to Complainant that he was to cease work-time meetings with a co-worker because of that co-worker's poor performance and attendance (the co-worker was also a co-Complainant), was fully justified and not harassment or retaliation. The ALJ found that at the time of the first directive not to associate with the co-worker at work, the only protected activity that could have prompted such a limitation was two years remote in time, that the record was clear that the co-worker's performance and attendance were deficient, that there was little business-related reason for Complainant and the co-worker to spend work time together, that the co-worker's performance and attendance had been deteriorating, and that the co- worker's later termination from employment on this ground had been upheld by an arbitrator.

[N/E Digest XI B 2 c]
LEGITIMATE BUSINESS REASON FOR ADVERSE ACTION; COMPLAINANT'S ANNER OF RAISING HEALTH AND SAFETY COMPLAINTS

In Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet , 95-CAA-7 (ARB Feb. 13, 1997), Complainant became involved in an internal EPA personnel matter during a period on which he was "on-loan" to the Commonwealth of Kentucky as a coordinator on environmental studies relating to several geographic areas of the state. Complainant presented a wrong impression that Kentucky had taken official positions on the personnel matter or sought involvement in the matter. The Board held that even if some of these activities were protected, Kentucky could legitimately consider Complainant's manner of raising health and safety complaints in determining whether it would renew Complainant in the coordinator position.

MOTIVE; DECISION NOT TO REHIRE CONTRACTOR WHO DISCOVERED PROBLEM
[N/E Digest XI B 2 c]

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 Petitioner had been hired as a "staff augmentee" to analyze fire safety issues at a nuclear facility. Two weeks after the expiration of his contract, the NRC announced a surprise inspection. When the nuclear facility considered forming a review team, and after the Petitioner's name was put forth for consideration, the Project Engineer said "I don't want any contractors working on problems which they discovered."

The Sixth Circuit found that this statement was not direct evidence of retaliatory discrimination which shifts the burden to the employer to produce evidence indicating that the adverse action was motivated by a non-discriminatory purpose. The court, in fact, found that it was not even enough to establish a prima facie case. The court found that the decision not to rehire was not shown on the record in the case to result from retaliation rather than a legitimate and pragmatic policy determination. The court wrote: "The goal of hiring a review team whose members bring a new and fresh perspective to detected problems may be part of a policy untainted by unlawful discrimination. Plaintiff has adduced no evidence to belie this explanation." Bartlik , 1996 U.S. App. LEXIS 394 at *11.

LEGITIMATE BUSINESS REASONS; REMOVAL OF COMPLAINANT IN EFFORT TO SATISFY NRC POLICY
[N/E Digest XI B 2 c]

In Talbert v. Washington Public Power Supply System , 93-ERA-35 (ALJ Oct. 20, 1995), the ALJ concluded that the Respondent's very existence depended on it making changes in personnel and the attitude of its employees in response to the NRC's finding the Respondent needed to change its "culture" of operating as though Emergency Operating Procedures (EOPs) were advisory only. The NRC considered the view that EOPs were advisory to be "blasphemy". The Complainant, a person with a reputation as a brilliant engineer, was viewed by at least some of the Respondent's executives as the principal protagonist of the belief that engineers and operators had the discretion to depart from EOPs if they thought best. The Complainant had expressed his view that following a certain EOP would be wrong and dangerous at a meeting in which Respondent's executives were explaining that company policy was that EOPs were "the law" and had to be followed rigidly, or changed through a procedure. The ALJ concluded that "the Respondent's need to satisfy the NRC was so compelling that it would have removed [the Complainant] . . . even if he had never raised the [issue of EOP safety at the EOP meeting] or later."MOTIVE; PRISON SAFETY
[N/E Digest XI B 2 c]

In Delaney v. United States Dept. of Labor, NO. 95-1487 (1st Cir. Nov. 6, 1995) (unpublished) (decision available at 1995 U.S. App. LEXIS 31284) (administrative case number 90- TSC-2), a prison official requested that the Respondent, a prison service contractor, transfer an inmate who was discussing his concerns about chemical safety in the license plate shop in an indiscrete manner. The prison official was concerned that other inmates might react with a work stoppage or other form of protest. The court affirmed the Secretary's conclusion that the complaint must be dismissed because the reason for the Complainant's subsequent transfer was not retaliation for complaining about safety, but prison security.

NONSELECTION; INADVERTENCE OR INEFFICIENCY
[N/E Digest XI B 2 c]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Complainant was not informed of positions for temporary inspectors until after the close of the application period. The Respondent presented testimony of an employment services office employee who stated that she generated a list of qualified employees by using quality in a word search of the Respondent's computerized personnel files; by using quality rather than nuclear she failed to include the name of the Complainant and other nuclear inspectors. The Secretary found that this was an adequate explanation -- the list did not include the Complainant due to inadvertence or, at worst, inefficiency. The Secretary also noted that the Respondent s witnesses were exceptionally forthright and did not show animus toward the Complainant.

XI.B.2.c. Complainant failed to prevent violation

Pooler v. Snohomish County Airport ,
87-TSC-1 (Sec'y Feb. 14, 1994)

The Secretary approved the ALJ's Recommended Decision and Order to deny the complaint.

Although the Complainant sufficiently established an inference of a causal connection between the Complainant's protected activities and the adverse action taken against him, the Respondent met its burden of showing that the adverse action was motivated by legitimate reasons. The Respondent's position was that the disciplinary action against the Complainant was taken not because the Complainant engaged in any protected activity at all, but because the Complainant did not take adequate measures to stop or prevent the occurrence of the violations even though the Complainant knew beforehand that the violation would occur. Additionally, the Respondent demonstrated that it was truly concerned with the compliance of the safety regulation in this and other instances. Thus, the burden shifted to the Complainant to show that the Respondent's articulated reason was only a pretext and that the real reason was retaliation for engaging in the protected activities.

XI.B.2.c. Sleeping on the job

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.B.2.c. Probationary employee

In Fischer v. Town of Steilacoom, 83-WPC-2 (ALJ May 2, 1983) (settled before the Secretary, see Order Approving Settlement (Sec'y Dec. 1, 1983), the ALJ found that although Complainant was a probationary employee subject to discharge for any reason, he could not be discharged for the specifically prohibited reason of discrimination.

XI.B.2.c. Psychological profile

In Crosier v. Portland General Electric Co., 91- ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's clinical psychologist had ample reason to question Complainant's trustworthiness and reliability and to recommend denial of plant access under Respondent's established, written policy to "maintain a continuous behavioral observation program which is designed to [p]rovide prompt detection of aberrant behavior" and "[e]xclude an individual displaying such behavior from the protected, vital areas and restricted areas of the plant." As such, Complainant failed to establish pretext, and even for the sake of argument Complainant established an illegitimate motive, Respondent established by a preponderance of the evidence that it would have discharged Complainant even if he had not engaged in protected activity.

XI.B.2.c. Need to discuss complainant's performance with him (allegation was of harassment)

The complainant had complained to NRC that he was denied access to work procedures during working hours, which allegedly was a safety violation.

The complainant failed to establish pretext.

Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y Apr. 18, 1991).

XI.B.2.c. Reorganization

In Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (ALJ Dec. 14, 1992), the ALJ ruled that the Respondent failed to articulate a legitimate, nondiscriminatory reason for reassigning the Complainant. In Jenkins , there was evidence that the reassignment was motivated at least in part by the protected activity. The reason, reorganization, was also found to be pretextual -- it was clear that the Complainant's conduct was an embarrassment to EPA and that EPA's intent was to isolate the Complainant.

[Editor's note: The ALJ cited McDonald Douglas and the "but for" test, but appears to have applied a pretext test.]

XI.B.2.c. Removal of complainant from area of tension

In Bauch v. Landers, 79-SDW-1 (Sec'y May 10, 1979), the Secretary adopted the ALJ's conclusion that the Complainant was not transferred from his position as Water Engineer to Air Engineer because of the Complainant's protected activity but in an attempt to eliminate the friction that had developed between the Complainant and certain of the water authority's client. The ALJ found that the transfer was a management decision to assure and maintain effectiveness by its staff in enforcing water system requirements and not an attempt to resist or frustrate SDWA provisions. The ALJ started with the premise that the employee protection provision of the SDWA does not restrict an employer in its operational decisions, noted instances in the record of the Complainant's poor attitude and behavior, and instances in which the Complainant had used weak data to support his recommendations or advocating strong action when it was not warranted.

XI.B.2.c. Inappropriate behavior at work place

In Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Sept. 7, 1990), the ALJ reviewed the testimony in detail and concluded that the Complainant had engaged in outbursts that were entirely inappropriate to the circumstances. He noted that "[a]lleged discriminatees do not enjoy an unfettered right to engage in any impermissible activity and then to avoid the consequences thereof simply because they may have also engaged in a protected activity."

XI.B.2.c. Complainant's skill; need to have task completed

Although Complainant testified convincingly that he found a certain work assignment to be a hot, distasteful assignment, the Secretary in Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993), found that evidence established that Complainant's assignment to that task was routine and did not constitute adverse action based on the testimony of Complainant's foreman that it was not the worst assignment for his workers, that some laborers volunteered to do it, and that after Complainant's layoff he had assigned another laborer to do the task a similar percentage and duration of time as he had assigned Complainant to it.

In addition, the Secretary found that even the assignment to the task was an adverse action, Respondent proffered a legitimate business reason for the assignment -- the task needed to be done and Complainant was good at it.

XI.B.2.c. Ineffective leadership

Testimony that the Complainant delegated too much work, often without following up on what was done, with the result that he was not considered to be familiar enough with the details of his work and not to be an effective leader, constitutes evidence of a legitimate, nondiscriminatory reason for the adverse action sufficient to rebut the prima facie case. Thompson v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993).

XI.B.2.c. Temporary transfer of complainant during suit

In Ray v. Harrington, 79-SDW-2 (Sec'y July 13, 1979), the Secretary adopted the decision of the ALJ that the temporary transfer of the Complainant to a nonsupervisory position was not an act of discrimination. In Ray , the Complainant's complaint was based on a series of adverse employment actions. Apparently, he amended his complaint to include the transfer. All of the complaints except the transfer were untimely filed.

The ALJ concluded that it was a permissible business decision to transfer the Complainant

to avoid the conflict and embarrassment between him and his immediate supervisors who are defendants in this suit.

* * *

[The Respondent's] evidence furnishes explanation and good reason to justify [the Complainant's] transfer. It has a responsibility to provide water and sewer services to 450,000 people irrespective of its engagement in litigation. The smooth operation of the department is dependent upon the compatibility of the employees who carry out the duties of the department. Both sides are vexed by this litigation. [The Complainant's] immediate supervisors are defendants in this case, and as such they are both sensitive and vulnerable to charges real or imagined, which might interfere with their defenses or the functions of the department.

This mix of personalities had great potential for adverse effects on the department. Under the circumstances, [the Respondent] acted prudently in transferring [the Complainant] to avoid compounding existing problems pending the disposition of this litigation.

In the matter [of the Complainant's] reassignment, [the Respondent] acted within the parameters of its authority as his employer. The Act does not restrict an employer in its operational decisions. Management must be able to adjust employment situations so as to carry out its duties. [ Bauch v. Landers, 79-SDW-1 (Sec'y May 10, 1979)].

[Editor's note: The Complainant was later disciplined and discharged, and he filed a separate complaint heard by a different ALJ. The Secretary adopted that ALJ's conclusion that the additional employment actions were not related to his SDWA complaints, but resulted from poor performance, personnel conflicts, and inability to adjust to usual and normal employment situations. Ray v. Metropolitan Government of Nashville, 80-SDW-1 (Sec'y Apr. 14, 1980). The ALJ in the second suit discussed res judicata, but the Secretary did not address that issue.]

XI.B.2.c. Psychological profile

XI.B.3. Bursting bubble (ERA digest)

In St. Mary's Honor Center v. Hicks, ___ U.S. ___ (1993) (available at 1993 U.S. LEXIS 4401), the United States Supreme Court held that under the McDonnell Douglas/Burdine allocation of the burdens of proof and production for Title VII discriminatory-treatment cases, the trier of fact's rejection of the employer's asserted legitimate, nondiscriminatory reasons does not entitle the employee to a judgment as a matter of law. The mere production of evidence of nondiscriminatory reasons, whether believed or not, rebuts the presumption of intentional discrimination. Upon articulation of a reason, the McDonnell Douglas framework becomes irrelevant and the trier of fact must then decide the ultimate question of fact.

Although Hicks involved racial discrimination, the Secretary has adopted the McDonnell Douglas/Burdine approach to the employee protection provisions adjudicated by the Department. See Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983).

[Nuclear & Environmental Whistleblower Digest XI B 3]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS

Once a 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 employer retaliated against him because of protected activity. The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Pickett v. Tennessee Valley Authority , ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003).

[Nuclear & Environmental Whistleblower Digest XI B 3]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS

The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Kester v. Carolina Power & Light Co. , ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003).

[Nuclear & Environmental Digest XI B 3]
PRIMA FACIE CASE ANALYSIS; UTILITY OF IN FULLY LITIGATED CASE

In Niedzielski v. Baltimore Gas & Electric Co ., 2000-ERA-4 (ALJ July 13, 2000), the ALJ noted the ARB's position that in a fully litigated case in which the respondent presents evidence of a legitimate motive for the personnel action, an analysis of a prima facie case serves no analytical purpose because the final decision will rest on the complainant's ultimate burden of proof, but stated that "despite some duplication of effort ... working through the prima facie elements [is] useful since the ultimate burden of proof still involves many of the elements covered in the prima facie analysis. In addition, 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 33 n.10.

To the same effect: Petit v. American Concrete Products, Inc. , 1999-STA-47, slip op. at 3 n.1 (ALJ Apr. 27, 2000).

[Nuclear and Environmental Whistleblower Digest XI B 3]
PRETEXT; JUDGMENT FOR COMPLAINANT CANNOT BE BASED SOLELY ON DISBELIEF OF RESPONDENT'S PROFFERED REASON FOR ADVERSE EMPLOYMENT ACTION

In Masek v. The Cadle Co. , ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ALJ concluded that Complainant established that Respondent's proffered reason for the adverse employment action was pretext where the ALJ found that a critical witness for Respondent on the issue of causation was not credible. The ARB ruled that the ALJ committed an analytical error in this regard. The Board quoted St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993): "The Court noted that 'a reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason.' Id . at 515. 'It is not enough . . . to disbelieve the employer . . . .'"

[Nuclear and Environmental Whistleblower Digest XI B 3]
PRETEXT; DISBELIEF OF EMPLOYER'S STATED REASON FOR ADVERSE EMPLOYMENT ACTION

In Masek v. The Cadle Co. , ARB No.97-069, ALJ No. 1995-WPC-1 @ n.15 (ARB Apr. 25, 2000), the ARB held that pretext cannot be shown simply by proof that the employer's stated reason for its action is shown to be false, relying on St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993)

On June 12, 2000, the U.S. Supreme Court issued a decision in a case arising under the ADEA, Reeves v. Sanderson Plumbing Products, Inc ., No. 99-536 (2000 WL 743663 (U.S 2000)), holding that a plaintiff may win an employment discrimination case by presenting a prima facie case of discrimination and discrediting the employer's explanation for its actions.

While the Court stated that to find discrimination "the factfinder must believe the plaintiff's explanation of intentional discrimination [as well as disbelieving the employer's version]," Slip op. at 11; 2000 WL 743663 * 9, the Court (slip op. at 11- 12; 2000 WL 743663 * 9) quoted from St. Mary's Honor Center , 509 U.S at 511, as follows:

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accomplished by a suspicion of mendacity) may together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."

The Court in Reeves went on to say: "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive....In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.'" (Slip op. at 12; ; 2000 WL 743663 * 9) citations omitted. The Court's explanation continues, and should be read.

Thus, the ARB's decision on this issue in Masek may no longer represent an accurate statement of applicable law, given the Supreme Court's holding in Reeves .

[N/E Digest XI B 3]
ELEMENTS OF PRIMA FACIE CASE; NOT TO BE ADDRESSED ONCE RESPONDENT PRESENTS REBUTTAL EVIDENCE

In Eiff v. Entergy Operations, Inc. , 96-ERA-42 (ARB Oct. 3, 1997), the ALJ had determined in a Recommended Decision following the hearing that Complainant had failed to make out a prima facie case of discriminatory treatment. The ARB, although affirming all other aspects of the ALJ's decision, declined to adopt this finding. The ARB wrote:

Where, as here, the respondent has introduced evidence to rebut a prima facie case of a violation of the ERA's employee protection provision, it is unnecessary to examine the question of whether the complainant established a prima facie case.

Slip op. at 1-2 (citation omitted).

To the same effect: Boschuk v. J & L Testing, Inc. , 96-ERA-16, slip op. at n.1 (ARB Sept. 23, 1997); Pittman v. Goggin Truck Line, Inc. , 96-STA-25, slip op. at n.2 (ARB Sept. 23, 1997).

[N/E Digest XI B 3]
PRIMA FACIE CASE; LACK OF RELEVANCE AFTER CASE IS FULLY TRIED ON ERITS

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 produces evidence 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. Rather, 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 does not matter whether a prima facie case was presented.

Reynolds v. Northeast Nuclear Energy Co. , 94-ERA-47 (ARB Mar. 31, 1996).

PRIMA FACIE CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[N/E Digest XI B 3]

Once the employer articulates a legitimate, nondiscriminatory reason for discharging the complainant, the Couty/McDonnell Douglas framework and its attendant burdens and presumptions cease to be relevant. At that point, the onus is on the complainant to prove that the proffered legitimate reason is a mere pretext rather than the true reason for the challenged employment action. Carroll v. U.S. Dept. of Labor , 1996 U.S. App. LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below 91-ERA-46). See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Couty v. Dole , 886 F.2d 147 (8th Cir. 1989). The court held that "[w]hile Couty allows the complainant to shift the burden of production to the employer by establishing a prima facie case, the ultimate burden of persuasion remains with the complainant at all time."

PRIMA FACIE CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[N/E Digest XI B 3]

The Secretary has made it clear that once the case has been tried on the merits, the question whether a prima facie case was presented is not particularly useful in the analysis. In Carroll v. U.S. Dept. of Labor , 1996 U.S. App. LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below 91-ERA-46), the Eighth Circuit has approved the Secretary's position, although the court observed the Secretary can focus on the ultimate issue of whether the complainant proved his or her case by a preponderance of the evidence "with the hindsight benefit of a full hearing before the ALJ."

In Jackson v. Ketchikan Pulp Co. , 93-WPC-7 and 8 (Sec'y Mar. 4, 1996), the Secretary again focused attention on whether establishment of the prima facie case should be analyzed after the respondent has meet its burden of articulation, except that rather than speaking generically, the Secretary explicitly addressed the ALJ's analytical approach. The Secretary stated that "it was not necessary [for the ALJ] to engage in a detailed analysis of whether each Complainant established a prima facie case or whether [the Respondent] produced evidence sufficient to rebut the prima facie case." Rather, the Secretary wrote that "[a]fter a case has been fully tried on the merits, the ALJ's job is weigh all the evidence and decide whether the Complainants have proven by a preponderance of the evidence that Respondent intentionally discriminated against them because of protected activities." Slip op. at 4-5, n.1.

INFERENCE OF CAUSATION BASED ON TEMPORAL PROXIMITY; BURDEN OF RESPONDENT ONCE DRAWN
[N/E Digest XI B 3]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the ALJ drew an inference of causation from the Complainant s prima facie case, and ruled that the Respondent had failed to prove the absence of a causal link between the Complainant s protected activity and the adverse employment action. The Secretary held that this was a significant error in allocation of burden of proof. Rather, it is well established that a respondent may rebut the prima facie case "by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons." The complainant bears the ultimate burden of proof, and the burden of persuasion is never placed on the respondent (unless the "dual motive" analysis applies).

REBUTTAL; COMPLAINANT'S ULTIMATE BURDEN TO ESTABLISH BOTH PRETEXT AND THE PRESENCE OF INTENTIONAL DISCRIMINATION
[N/E Digest XI B 3]

Once a respondent proffers a legitimate nondiscriminatory reason for taking adverse action and thus successfully rebuts the presumption of discrimination raised by the prima facie case, the complainant must prove that the respondent's reason was not the true reason for the adverse action and that the protected activity was. Cf. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993)(Title VII, Civil Rights Act of 1964). Proving only that the proffered reason was unbelievable does not compel a finding for the complainant. Rather, the trier of fact must find intentional discrimination in order for the complainant to prevail. Leveille v. New York Air National Guard, 94-TSC-3 and 4 slip op. at 7-8 (Sec'y Dec. 11, 1995).

XI B 3 After trial on the merits, prima facie case analysis is no longer useful

Once a case has been fully tried on the merits, the answer to the question whether the complainant presented a prima facie case is no longer particularly useful. Moreover, the question of whether a complainant has met the burden of establishing a prima facie case cannot be answered based on evidence presented by the respondent. Jopson v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995) (ALJ's analysis technically wrong when he concluded that the Complainant failed to raise an inference of causation largely based on the Respondent's evidence nonetheless, it was clear he evaluated the entire record, and thus could be affirmed in reaching the conclusion that the Complainant failed to prove that the Respondent's reasons for discharging him were pretextual).

XI B 3 Complainant's burden under the ERA is to demonstrate that protected activity contributed to the employer's adverse action, not to merely establish a prima facie showing of causation

In Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995), the Secretary held that the amendments made by the Comprehensive Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123, to the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, made only one change in the order and allocation of burdens of proof and production in ERA hearings.

In 1992, Congress added a new paragraph (3) to 42 U.S.C. § 5851, which provides, among other things, that "[t]]he Secretary may determine that a violation . . . has occurred only if the complainant has demonstrated that [protected activity] was a contributing factor in the unfavorable personnel action alleged . . . ." 42 U.S.C. § 5851(b)(3)(C). If the complainant carries that burden, he or she nevertheless is not entitled to relief "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." 42 U.S.C. § 5851(b)(3)(D).

In Dysert , the Complainant contended that under this new standard, if he carries his relatively light burden of establishing a prima facie case, he has proved discrimination and the burden then shift to the employer to show by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.

The Secretary held that the plain language of the statute places the burden on the complainant to "demonstrate" that protected activity contributed to the employer's adverse action, not to merely establish a prima facie showing of causation. In the Secretary's view, this does not alter the degree of persuasiveness by which a complainant must prove his or her case. Although a few statements by some legislators may have been at odds with this interpretation, the Secretary noted that the United States Supreme Court has held that an unambiguous phrase in a statute cannot be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process. West Virginia University Hospitals v. Casey, 499 U.S. 83, 98-99 (1991).

XI B 3 Complainant's ultimate burden must be meet once respondent produces evidence of legitimate reason; prima facie case analysis no longer relevant at that point

Where a whistleblower case has been fully tried on the merits, it is not necessary to engage in an analysis of the elements of a prima facie case. Once the respondent produces evidence that the complainant was subjected to an adverse action for a legitimate, nondiscriminatory reason, the answer to the question whether a prima facie case was presented is no longer useful. If the complainant has not prevailed by a preponderance of the evidence on the ultimate question of liability it matters not at all whether he presented a prima facie case.

Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995).

XI B 3 Secretary's review of prima facie case is not necessary when respondent presented rebuttal evidence

Where the Respondent presented evidence to rebut a prima facie case of an ERA violation, the Secretary is not required to engage in a lengthy analysis of all the elements of a prima facie case. Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), petition for review docketed, No. 95-1729 (8th Cir. Mar. 27, 1995). Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995).

To the same effect: Kettl v. Gulf States Utilities Co. , 92-ERA-33 (Sec'y May 31, 1995) (Complainant failed to carry ultimate burden of proof to show that he was denied training based on his protected activity).

XI.B.3. Secretary's acknowledgment of Hicks

In Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993),
the Secretary cited the decision of the United States Supreme Court in St. Mary's Honor Center v. Hicks, No. 92-602 (U.S. June 25, 1993) (available at 1993 U.S. LEXIS 4401), in regard to the appropriate burden of proof in whistleblower cases. The Secretary noted that Dartey was based on Title VII cases, and St. Mary's Honor Center clarified the burden in those cases.

To the same effect: Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993) (dual motive case).

XI B 3 Whether prima facie case was established looses its importance in the analysis once the record is complete

Once the record is complete in a case, the answer to the question whether the Complainant presented a prima facie case is no longer particularly useful. Logic dictates that if the complainant does not prevail by a preponderance of the evidence on the ultimate question of liability, it matters not at all whether he presented a prima facie case. Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y ar. 24, 1995) (citing Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at 10-11).

XI B 3 Burden of articulation on prima facie case; failure to carry ultimate burden on issue

In Sluder v. Detroit Edison Co., 93-ERA-32 (Sec'y Apr. 13, 1995), the Complainant made out a prima facie case of protected activity by presenting evidence that she had complained to a person in a supervisory capacity about a co-worker's apparent drinking. To make out a prima facie case, the Complainant was only required to present evidence sufficient to prevail until contradicted and overcome by other evidence.

The Complainant, however, failed to establish by a preponderance of the evidence that she made a protected internal complaint. The evidence, rather, indicated that she had made the observation about the co-worker in confidence, and expected that it would go no further.