DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION D -- RESPONDENT'S BURDEN
[Last updated Mar. 30, 2015]
-
XI. Burden of proof and production
-
* * *
- D. Respondent's burden to establish adverse action would have been taken absent protected activity
P align=justify>
[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; SPLIT ARB PANEL FINDS THAT RESPONDENT ESTABLISHED THAT COMPLAINANT'S FIRING FOR FAILING TO PROMPTLY REPORT COWORKERS' FAILURE TO COMPLETE ACCURATE FIREWATCH LOGS WOULD HAVE TAKEN PLACE ABSENT PROTECTED ACTIVITY WHERE EVIDENCE SHOWED THAT THE RESPONDENT EMPHASIZED INTEGRITY REGARDING THE LOGS, AND THAT COWORKERS WHO HAD NOT ENGAGED IN PROTECTED ACTIVITY RECEIVED THE SAME DISCIPLINARY TREATMENT AS THE COMPLAINANT
[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; CONCURRING MEMBER'S NOTATION THAT STANDARD REQUIRES THE ALJ TO CONSIDER A HYPOTHETICAL SCENARIO
[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; CONCURRING MEMBER'S OBSERVATION THAT RESPONDENT'S SUBJECTIVE DETERMINATION OF EMPLOYEE TRUSTWORTHINESS IS INHERENTLY AMBIGUOUS, AND THAT THE ALJ HAD NOT ANALYZED THE CASE AS REQUIRED BY ARB'S DECISION IN
SPEEGLE
In Smith v. Duke Energy Carolinas, LLC , ARB No. 14-027, ALJ No. 2009-ERA-7 (ARB Feb. 25, 2015), the ARB had remanded the matter to the ALJ to make a determination whether the Respondents established by clear and convincing evidence that the adverse actions against the Complainant would have taken place in the absence of the Complainant's protected activity. The Complainant was employed by a contractor to Duke Energy as a firewatcher. Firewatchers were required to inspect affected areas and to follow proper procedures for maintaining firewatch log books. The Complainant noticed discrepancies in the log book when logging in for a shift, including signatures for a firewatcher after she had logged out and blank signatures for an inspection time. The Complainant asked a departing firewatcher about them. He replied that his co-firewatcher had left early but that he had completed her shifts. The Complainant said that the departing firewatcher must correct the log or he would report the discrepancy. The other firewatcher agreed, but only added his name to blank inspections spaces. He did not correct the spaces for which the early-departing firewatcher pre-signed. Later, the firewatcher who had left early told another worker that the Complainant had been spreading rumors about her, and that she would get back at him by reporting that the Complainant had been sexually harassing her. When confronted by management about the sexual harassment complaint, the Complainant denied the allegation and proffered that the alleger had made the complaint because of fear that the Complainant would disclose that she had pre-signed the firewatch log. Following an investigation, the Complainant was discharged by the contractor on the ground that the Complainant's failure to report the falsification of the firewatch logbook until confronted with a sexual harassment charge raised significant integrity and trustworthiness issues. Duke Energy later denied the Complainant's unescorted access authorization with an unfavorable characterization.
Lead Opinion
The ALJ determined that the Respondents proved by clear and convincing evidence that "they would have taken the same adverse personnel actions if they had learned of [the Complainant's] seven day delay in reporting the firewatch falsification, and the circumstances of that disclosure, through some means other than the contents of his protected activity." The ARB affirmed the ALJ's decision in a split decision.
-- Clear and convincing evidence that violation was considered serious, and that co-workers who had not engaged in protected activity received the same disciplinary treatment
The lead opinion noted that the ALJ issued his Decision and Order on Remand three months prior to the ARB's decision on "clear and convincing evidence" in Speegle v. Stone & Webster Constr. Inc. , ARB No. 13-074, ALJ No. 2005-ERA-006, slip op. at 12 (ARB Apr. 25, 2014), but that the ALJ had analyzed the case using MSPB authority that used analysis like that in Speegle . The lead opinion found that substantial evidence supported the ALJ's decision based on (1) evidence that that NRC regulations require that information given to it be "complete and accurate in all material respects," that Duke Energy had issued a directive for complying with the NRC regulations by requiring the firewatcher log to be filled out by the person currently responsible for the fire watch tours, and that the contractor's safety manual required workers to promptly report safety concerns to managers and provided that failure to do so was grounds for discipline that could include termination; (2) the contractor's manager's testimony about the importance of filling out firewatch logs correctly and his determination that the Complainant's failure to report the discrepancy was an integrity issue, and the Duke Energy manager's testimony that the discrepancy was a serious matter and his belief that the Complainant should have at least informed the "Single Points of Contact" supervisors; (3) undisputed evidence that about 18 months after the incident, the NRC imposed a Notice of Violation on the Duke Energy stemming from the firewatch reporting discrepancies; and (4) evidence demonstrating that that the Complainant was treated the same as the two other firewatchers involved in the incident, both of whom were fired, and that the contractor had fired another worker for failing to report yet another worker's violation of a company rule.
The lead decision observed:
Protected activity will not shield an under-performing worker from discipline. See, e.g., Formella v. U.S. Sec'y of Labor , 628 F.3d 381, 391-93 (7th Cir. 2010); Kahn v. U.S. Sec'y of Labor , 64 F.3d 271, 279 (7th Cir. 1995) ("We have consistently held that an employee's insubordination toward supervisors and coworkers, even when engaged in a protected activity, is justification for termination."). As a general matter, the whistleblower statutes the Department of Labor enforces "render[] whistleblowers no less accountable than others for their infractions or oversights." Daniel v. Timco Aviation Svcs., Inc. , ALJ No. 2002-AIR-026, slip op. at 25 (June 11, 2003). "It ensures only that they are held to no greater accountability and disciplined evenhandedly." Id .; see, e.g., Abbs v. Con-Way Freight, Inc. , ARB No. 12-016, ALJ No. 2007-STA-037, slip op. at 6, n.5 (ARB Oct. 17, 2012) ("Certainly, the undisputed evidence of Abbs' falsification of the log book and payroll record is 'clear and convincing evidence that [Con-Way] would have taken the same adverse action in the absence of the protected conduct.'").
USDOL/OALJ Reporter at 10.
Concurring Opinion
- Importance of safety and worker integrity in nuclear industry
One member of the ARB concurred with the lead decision, emphasizing that failures to adhere to safety concerns in the nuclear plant industry (such as certifying that fire watches were in fact performed), "are serious concerns regardless of whether such failures are a subject of protected activity or an employer's basis for discipline." Id . at 12. The concurring member also noted that in this case the Respondent had clear and undisputed reasons for doubting the Complainant's integrity, and not ambiguous and subjective reasons.
- Statute requires consideration of hypothetical scenario
The concurring member emphasized that the ERA requires "clear and convincing evidence" of what the Respondent "would have" done "absent the protected activity." This member found that the ALJ recognized this:
The record as a whole supports the ALJ's finding that Respondents proved by clear and convincing evidence that they would have fired Smith over the fire watch and integrity issues. Consequently, despite the Board's previous finding that Smith's reporting was inextricably intertwined with the unfavorable employment actions, the statutory law expressly requires the ALJ to consider a hypothetical scenario when considering the employer's affirmative defense: what Respondents would have done in the absence of Smith's reporting. The difficulty lies in deciding how much hypothesizing to do with the facts. In this case, the ALJ did not need to hypothesize too much because, if he assumed only that Respondents discovered the violation another way, Respondents� actions against Smith's co-workers demonstrate how seriously Respondents treated the safety issues in this case.
Id . at 13 (footnote omitted).
Dissenting Opinion
-- Finding that an employee's trustworthiness is unsatisfactory is inherently ambiguous; record did not contain clear and convincing evidence that delay in reporting was as serious as found by the ALJ; possibility that retaliatory sexual harassment complaint of co-worker influenced adverse action decision; termination out of proportion as discipline
One member of the ARB dissented, finding that the Complainant had been fired for telling the truth. This member found that the Respondent had not shown by clear and convincing evidence that the Complainant was untrustworthy. The member wrote that: "an employer's subjective determination of 'unsatisfactory trustworthiness' as a basis for termination is almost by definition 'ambiguous.'" The dissenting member found that the ALJ had not performed the analysis in the manner required by the Speegle decision, because each of the principal reasons supporting the Respondents' affirmative defense were based on the content of the Complainant's protected activity of reporting the logbook discrepancy. The dissenter recognized the difficulty of literally applying the statute. The dissenter noted that the Complainant had not delayed reporting a missed fire watch, but only reporting a technical inaccuracy in the fire log, and that the seriousness of the delay found by the ALJ was not sufficiently supported by the record. The dissenter also questioned whether the Complainant had deliberately failed to report, given that the co-worker had agreed to correct the log. The dissenter noted that the sexual harassment complaint was itself retaliation for protected activity, and cited authority to the effect that an employer may be held liable for the actions of lower level supervisor who influences a higher level official's decision to take adverse action. Finally, the dissenter questioned whether termination was proportional to the justification for the adverse action, there being no evidence of another employee terminated for delaying in reporting a log discrepancy.
[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF MET BY RESPONDENT WHERE THE COMPLAINANT ENGAGED IN A PROFANE OUTBURST AT A STAFF MEETING ANNOUNCING A CONTROVERSIAL NEW POLICY WHERE THE COMPLAINANT WAS IN A LEADERSHIP CAPACITY, THE COMPLAINANT'S SUPERVISOR UNDERSTOOD THE OUTBURST TO MEAN THAT THE COMPLAINANT WOULD NOT COMPLY WITH THE NEW POLICY, AND THE OUTBURST OCCURRED AFTER MANAGEMENT HAD MADE IT CLEAR THAT ITS DECISION ON THE NEW POLICY WAS FINAL; ALJ SUFFICIENTLY CONSIDERED FACTS THAT WOULD HAVE CHANGED IN THE ABSENCE OF THE COMPLAINANT'S PROTECTED ACTIVITY; ALJ FOUND THAT THE COMPLAINANT'S OUTBURST DID NOT EXPRESS ANYTHING REGARDING POLICY'S IMPACT ON SAFETY BUT ONLY CONCERN ABOUT LOSS OF JOURNEYMAN JOBS
In Speegle v. Stone & Webster Construction, Inc. , ARB No. 14-079, ALJ No. 2005-ERA-6 (ARB Dec. 15, 2014), the Complainant was a journeyman painter and foreman. He and other journeymen opposed a management plan to certify apprentice painters for certain painting repair work. The opposition included both protected nuclear safety concerns and union issues. As a result, there was tension in the workplace. In a meeting in which management announced that it approved the plan the certify apprentice painters, the Complainant stood up and told the general foreman in a loud voice in front of other members of his journeymen crew that management could take the plan and 'shove it up their ass.' The Complainant also testified that before walking out of the meeting he "may" have told the general foreman "[t]hank you; you just gave all these people's jobs away." A supervisor viewed the Complainant's outburst as meaning that he would not comply with management's decision. The Complainant was suspended and then terminated from employment for insubordination. A lengthy adjudication of the Complainant's ERA whistleblower complaint before the Department of Labor and the Eleventh Circuit ensued. In a 2013 decision on remand, the second ALJ on the case determined that the Respondent had established by clear and convincing evidence that it would have taken the same action against Complainant absent the protected activity. In a two judge majority decision in April 2014, the ARB remanded the matter because it found that the ALJ had failed to discuss some material facts or to discuss what facts would have changed absent the protected activity. In its remand decision, the ARB
held that the express terms of the whistleblower statute require the employer to prove by 'clear and convincing evidence" that it "would have" taken the same adverse action in the "absence of" protected activity. We explained that this statutory mandate requires adjudicators of whistleblower cases to consider the combined effect of at least three factors applied flexibly on a case-by-case basis: (1) how "clear" and "convincing" the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer "would have" taken the same adverse action; and (3) the facts that would change in the "absence of" the protected activity.
The majority noted that the "employer may have direct or circumstantial evidence of what it 'would have done'" and that the "circumstantial evidence can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee's work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions."
USDOL/OALJ Reporter at 4 (footnotes omitted) (summarizing ruling from Apr. 25, 2014 remand decision). On remand, the ALJ struggled with some aspects of the ARB's remand order, particularly on how to hypothetically consider all "logically connected" facts that would have changed in the absence of the protected activity, and issued a decision that focused on clarifying his earlier decision and specifically addressing the matters and analysis raised by the ARB's remand order. See Speegle v. Stone & Webster Construction, Inc. , 2005-ERA-6 (ALJ July 9, 2014).
In the current appeal, the Board summarized the ALJ's findings on the relevant circumstantial evidence. The ARB stated that the ALJ found that the temporal proximity between the outburst and the termination indicated that the termination was for the outburst rather than the previous raising of safety concerns. The ARB noted that the ALJ found that the Complainant's outburst must be viewed in the unique context that the Complainant was responding as a leader at a public meeting about the new policy when reviewing the Respondent's determination that the outburst was insubordinate and an indication of a refusal to "complete the task." The ALJ gave no weight to the fact that the Respondent's policy that employees may be fired for "insubordination" did not include a definition of insubordination because employers want to retain some discretion with such decisions. The ALJ found that there were no comparator employees under the unique circumstances of the case. The ALJ noted that the supervisors were aware of the Complainant's good work record and that he may have deserved some leeway for an outburst regarding safety concerns or protected activity, but that the only concern raised by the Complainant at the time of the outburst related to union concerns about giving journeyman jobs to apprentices.
The two-judge majority of the ARB panel stated that the instant case was not a strong case for finding that the Respondent established its clear and convincing evidence burden, but nonetheless found that substantial evidence supported the ALJ's finding that the Respondent established by clear and convincing evidence that it would have fired the Complainant absent the Complainant's protected activity. The ARB stated:
The ALJ explained that the reason for the termination was "clear," that S & W considered Speegle's outburst regarding the new policy, telling management it could 'shove it,' was insubordinate. The ALJ found the grounds for termination "convincing" because (1) Speegle made his outburst, as a "leader" before other journeyman painters at a "public" meeting announcing the new policy; (2) Gero understood that Speegle would not comply with management's directive; and (3) Speegle made his outburst after tension had built up and management made clear that it had reached a final decision and the matter was resolved.
In considering the evidence that proves that S & W still "would have" terminated Speegle, the ALJ found that S & W had not terminated either Speegle or any other worker before that meeting for raising previous concerns or expressing safety concerns or protected activity, but suspended and terminated Speegle after his outburst. Finally, considering the facts that would change in the "absence of" Speegle's safety concerns or protected activity, the ALJ found that Speegle did not express anything regarding safety with his outburst, but only his journeyman union job concerns. Thus, there is no need to engage in hypothetical analysis because, assuming Speegle had not expressed any safety concerns, the ALJ sufficiently explained that the other concerns not ERA related also created tension that led to the May 22, 2005 meeting, and Speegle's outburst would have been just as insubordinate and unacceptable to management in the manner that it occurred, leading to immediate suspension and termination.
USDOL/OALJ Reporter at 6. Because the ALJ had sufficiently considered and explained the combined effect of the three factors, the ARB affirmed the ALJ's decision. One member of the Board issued a concurring opinion focusing on precedent to the effect that protected activity does not shield an insubordinate employee from discipline, and that the record showed that the Complainant had apparently refused to comply with company procedures in an outburst during a staff meeting.
[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE DEFENSE; ARB CLARIFIES ANALYSIS
In Speegle v. Stone & Webster Construction, Inc. , ARB No. 13-074, ALJ No. 2005-ERA-6 (ARB Apr. 25, 2014), the Complainant was a journeyman painter for the Respondent who strongly objected to a plan by the Respondent to certify apprentice painters to work applying protective paint coating in the Torus area of a nuclear reactor. The Complainant believed that the plan was a nuclear safety risk because apprentice painters lacked sufficient experience to safely apply protective paint coatings. The Complainant repeatedly raised his concerns. At a meeting at which the Complainant's superior asked a journeyman painter to read an Engineering Work Request (EWR), the Complainant stated to the supervisor that "management can take that G-55" and "shove it up their ass." The Complainant admitted that he "may" also have told the supervisor, "Thank you. You just gave all these people's jobs away." The Complainant's employment was subsequently terminated for insubordination, and the Complainant filed an ERA whistleblower complaint. Following a lengthy appeals process, the ARB reversed the ALJ's determination that protected activity did not contribute to the adverse action, the ARB finding that there was no evidence of unprofessional conduct or insubordinate conduct by the Complainant that was unrelated to his protected activity and that the Complainant's insubordinate acts were "inextricably intertwined" with protected activity. The ARB remanded for the ALJ to determine whether the Respondent could show, by clear and convincing evidence, that it would have taken the same action against the Complainant absent the protected activity. On remand, the ALJ noted the analytical difficulty of trying to determine if the Respondent would have terminated the Complainant if he had not voiced the earlier protected complaints. The ALJ, however, found it highly probable the Respondent would have fired the Complainant because (1) the Complainant was one of a group of employees complaining about the program and none of the other employees had adverse action taken against them; (2) the Respondent's officials believed that the Complainant's statement meant he would refuse to comply with their decision and had been insubordinate; (3) the Complainant's statement was made after several experts had addressed the safety issue; (4) the Complainant's "'statement would have still been profane, public, and made by a leader immediately following a 'last word' discussion and clear instructions that the substantive decision had been made and would be implemented, and any further objections should be made to higher levels of management.'" USDOL/OALJ Reporter at 10 (ARB quoting ALJ's decision).
On appeal, the ARB found that the ALJ's analysis of the "clear and convincing" defense had been materially incomplete, necessitating another remand for the ALJ's consideration of the matter pursuant to the ARB's discussion of the defense. The ARB wrote:
To avoid paying damages in this case, the plain language of the ERA whistleblower statute makes clear that the employer must prove by "clear and convincing evidence" that it activity." The plain meaning of the phrase "clear and convincing" means that the evidence must be "clear" as well as "convincing." "Clear" evidence means the employer has presented evidence of unambiguous explanations for the adverse actions in question. "Convincing" evidence has been defined as evidence demonstrating that a proposed fact is "highly probable." The burden of proof under the "clear and convincing" standard is more rigorous than the "preponderance of the evidence" standard and denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain. In Colorado v. New Mexico , 467 U.S. 310, 316 (1984), the Supreme Court defined "clear and convincing evidence" as evidence that suggests a fact is "highly probable" and "immediately tilts" the evidentiary scales in one direction. We find that the Court's description in Colorado v. New Mexico provides additional useful guidance for the term "clear and convincing" evidence, and we incorporate it into our application of the ERA whistleblower statute.
In addition to the high burden of proof, the express language of the statute requires that the "clear and convincing" evidence prove what the employer "would have done" not simply what it "could have" done. Therefore, it is not enough to show that Speegle's conduct provided a sufficient independent reason to suspend and fire him, but that the employer would have done so in this case solely based on a single outburst in a meeting. There must be evidence in the record that demonstrates in a convincing manner why the employer "would have fired" Speegle, a longtime employee, for a single outburst in a staff meeting. The employer may have direct or circumstantial evidence of what it "would have done." The circumstantial evidence can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee's work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.
The last factor, and thorniest in this case, of the "clear and convincing" defense focuses on what would have happened in the "absence of" the protected activity. This is another ambiguous term in the statute with which the ALJ understandably wrestled but only captured part of its significance. We think the ALJ too narrowly applied this factor by only excising the protected activity without also removing the facts logically connected to the protected activity. To properly decide what would have happened in the "absence of" protected activity, one must also consider the facts that would have changed in the absence of the protected activity. In other words, like this case, if the protected activity created tension and animosity before an employee was fired for a lawful reason, then the absence of the protected activity means the absence of the related animosity and tension. Similarly, if the protected activity gave meaning and clarity to an outburst, then the fact-finder must keep in mind that the outburst may become ambiguous in the "absence of" protected activity that provided context to the outburst. To sum up the factors that must be considered in applying the "clear and convincing" defense, we find that the statute requires us to consider the combined effect of at least three factors applied flexibly on a case-by-case basis: (1) how "clear" and "convincing" the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer "would have" taken the same adverse actions; and (3) the facts that would change in the "absence of" the protected activity.
USDOL/OALJ Reporter at 10-12 (footnotes omitted).
The ARB found that the ALJ had touched on each of these three factors to some degree in his order "but that material findings are missing, preventing us from reviewing whether the ALJ's final ruling complied with the law." Id . at 12. One member of the ARB dissented, finding that the ALJ had fully considered sufficient evidence for determining that the Respondent met its burden under the facts of this particular case.
[Nuclear and Environmental Whistleblower Digest XI D 1]
"MOTIVATING FACTOR" RATHER THAN "CONTRIBUTING FACTOR" IS COMPLAINANT'S BURDEN OF PROOF IN A FWPCA WHISTLEBLOWER CASE;
EMPLOYER'S BURDEN IN A FWPCA CASE IS TO PROVE THAT IT WOULD HAVE TERMINATED COMPLAINANT IN ABSENCE OF
PROTECTED ACTIVITY BY A "PREPONDERANCE OF THE EVIDENCE" RATHER THAN BY "CLEAR AND CONVINCING EVIDENCE"
In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 12-002, ALJ No. 2006-WPC-1 (ARB Aug. 29, 2012), the ARB affirmed the ALJ's Decision and Order dismissing the Complainant's Federal Water Pollution Control Act whistleblower complaint, largely based on the ALJ's credibility determinations and consequent findings that the Complainant had been fired for performance problems related to a construction project and the Complainant's request to use a full month of vacation leave. The ARB noted that the ALJ had laid out the wrong standard for causation and made some findings that strayed from the relevant whistleblower issues:
The ALJ stated that a complainant must prove his protected activity was a contributing factor, citing Speegle v. Stone & Webster Constr., Inc. , ARB No. 06-041, ALJ No. 2005-ERA-006, slip op. at 8 (ARB Sept. 24, 2009), when the FWPCA regulations at 29 C.F.R. § 24.109(b)(2) state that a complainant must demonstrate "by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action." The ALJ also wrote on pages 36 and 43 that a complainant must demonstrate by a preponderance of the evidence that the respondent's proffered reasons are merely pretext for retaliation. While "pretext" evidence may be used as circumstantial evidence of true motives, the complainant is not required to show pretext but merely prove that "the protected activity caused or was a motivating factor in the adverse action," even if it was only one of several motivating factors. 29 C.F.R. § 24.109(b)(2). Several of the ALJ's conclusions were unhelpful because they did not conform to the law including his conclusion that Kanj's termination "likely was not the result of any retaliatory motive on the part of his employers," and "the sum total of these reasons provides adequate grounds for Kanj's termination." D. & O. at 43. The issue is what caused the adverse action, more specifically, if protected activity motivated it, not what likely did not cause the adverse action. Further, the Act does not ask whether a respondent had good reasons to discriminate against a person, only whether the discrimination was motivated in any way by protected activity.
USDOL/OALJ Reporter at 6, n.4. Nonetheless, although the ALJ had wrongly employed the "clear and convincing evidence standard" rather than the preponderance of the evidence standard that applies to a FWPCA case, it did not matter because the Respondent met its burden to prove that it would have terminated the Complainant's employment absent any protected activity by a preponderance of the evidence.
[Nuclear and Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; RELATIONSHIP BETWEEN SUPERVISOR AND COMPLAINANT HAD BEEN SEVERELY DAMAGED EVEN BEFORE COMPLAINANT'S PROTECTED ACTIVITY
In Chen v. Dana-Farber Cancer Institute , ARB No. 09-058, ALJ No. 2006-ERA-9 (ARB Mar. 31, 2011), the ARB found that, while the Complainant, a research fellow, proved that her reporting of a radiation spill was a contributing factor to her discharge, the Respondent was not liable under the whistleblower provision of the ERA because it proved by clear and convincing evidence that it would have fired the Complainant absent her protected activity. The Complainant's day-to-day supervisor, the laboratory's principal researcher, heavily influenced the decision by the laboratory head to discharge the Complainant. The supervisor and the Complainant had disagreed over laboratory protocols shortly after the Complainant began her 90 day probationary employment. The relationship was severely damaged before the protected activity of reporting the radiation spill occurred, and the ARB found that there was clear and convincing evidence that the supervisor would have recommended termination absent the protected activity.
One member of the Board dissented, finding that under the very high standard of proof presented by the clear and convincing evidence standard the Respondent had not demonstrated that it would have fired the Complainant absent her protected activity. The dissent includes a discussion of the "cat's paw" theory of liability approved by the Supreme Court in Staub v. Proctor , 131 S.Ct. 1186 (2011) (arising under the USERRA).
XI.D.1. Adoption of Wright Line standard
In Landers v. Commonwealth-Lord Joint Venture, 83- ERA-5 (Sec'y Sept. 9, 1983), the Secretary adopted the ALJ's decision approving the ALJ's adoption of the analysis of the NLRB for dual motive cases stated in Wright Line, A Division of Wright Line, Inc., 251 NLRB 1-83 (1980), but noted that the Secretary disagreed with a Seventh Circuit opinion cited by the ALJ indicating that an employee has to make "a prima facie showing that [his] protected . . . conduct was a motivating factor in his discharge, whereupon the burden shifts to the employer to demonstrate that the employee would have been discharged even in the absence of the protected conduct." N.L.R.B. v. Town & Country LP Gas Service Co., 687 F.2d 187, 191 (1982). The Secretary stated that the correct rule is that the employee must prove "by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action" for the burden of proof or persuasion to shift to the employer "to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." Dean Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983). [All the Secretary's emphasis]
[Editor's note: The 7th Circuit published a decision in which it denied a stay of the Secretary's reinstatement order pending review by that court. Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67 (7th Cir. 1983). Evidently the case was resolved in an unpublished decision, of which OALJ does not have a copy.]
[Nuclear & Environmental Whistleblower Digest XI D 1]
DUAL MOTIVE; EMPLOYER'S BURDEN HIGHER UNDER ERA THAN CAA
Where a complainant has established that protected activity was a contributing factor in an unfavorable personnel decision, Congress has specifically placed a higher "clear and convincing evidence" burden on the employer in ERA whistleblower cases to demonstrate that it would have taken the same unfavorable personnel action in absence of such behavior. In CAA cases, however, the employer's burden is only "a preponderance of the evidence." Martin v. Azko Nobel Chemicals, Inc. , ARB No. 02 031, ALJ No. 2001 CAA 16 (ARB July 31, 2003).
[Nuclear & Environmental Whistleblower Digest XI D 1]
LAWFUL MOTIVE; IMPROPER MOTIVE UNDER NLRA OR OSHA NOT RELEVANT
In Mourfield v. Frederick Plaas & Plass, Inc. , ARB Nos. 00 055 and 00 056, ALJ No. 1999 CAA 13 (ARB Dec. 6, 2002), Complainant argued on appeal that, under the dual motive analysis, the "employer bears the burden to show that it would have taken action without its illegal motives. A 'legitimate' reason is a lawful reason...." The ARB rejected this argument, finding that although an employer's motives may be illegal under other laws, such as the NLRA or the OSHA, the employee protection provisions of the environmental laws only protect employees from retaliation if they have reported safety and health concerned addressed by those environmental statutes.
[Nuclear & Environmental Whistleblower Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE; "HIGHLY PROBABLE" STANDARD
In Duprey v. Florida Power & Light Co. , ARB No. 00 070, ALJ No. 2000 ERA 5 (ARB Feb. 27, 2003), the ARB concurred with the ALJ's finding that Respondent's articulated reason for demoting the Complainant B excessive absenteeism B was rebutted by inferential evidence showing that Respondent had a retaliatory motive for the demotion. Nonetheless, the ARB also concurred with the ALJ's finding that Respondent had demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of Complainant's protected activity, where Respondent presented evidence demonstrating that managing absenteeism is very important at a nuclear power plant, that Respondent had a progressive discipline policy, that Complainant had exhibited regular and continual excessive absenteeism despite counseling, and that it had not selectively applied its sick leave policy to Complainant or treated other offenders less harshly. The ARB found that Respondent had established that it was "highly probable" that Complainant would have been demoted even if he had not engaged in protected activity. The ARB cited in this respect the decision in Colorado v. New Mexico , 467 U.S. 310, 315 317 (1984) for the proposition that "[c]lear and convincing evidence is that which is 'highly probable' because it would 'instantly tilt [] the evidentiary scales in the affirmative when weighed against [the opposing evidence].'"
[N/E Digest XI D 1]
CONTRIBUTING FACTOR ELEMENT UNDER 1992 ERA AMENDMENTS;
COMPLAINANT'S BURDEN
In Dysert v. Secretary of Labor , No. 95-3298 (11th Cir. Feb. 11, 1997) (case below 93-ERA-21), the Eleventh Circuit addressed the proper application of the statutory burdens of proof set forth in the whistleblower protection provisions of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851(b)(3). Complainant took the position that the ALJ and the Secretary misapplied the burdens set forth in section 5851(b)(3) as amended in 1992, arguing that after the amendments, a complainant is only required to make a prima facie showing of discrimination before the burden of persuasion shifts to the respondent to prove by clear and convincing evidence that it would have terminated the complainant in the absence of his or her protected activity.
The Eleventh Circuit rejected Complainant's position, finding that DOL's interpretation of section 5851(b)(3) -- that complainant must make a showing by a preponderance of the evidence that his or her protected activity was a contributing factor to the unfavorable personnel action alleged in the complaint -- is reasonable and entitled to deference by the courts.
BURDEN OF PROOF IN ERA AFTER 1992 AMENDMENTS IN TERMINATION
OF EMPLOYMENT CASE; CLEAR AND CONVINCING EVIDENCE STANDARD
[N/E Digest XI D 1]
To prevail, an ERA whistleblower complainant must establish, by a preponderance of the evidence, that the respondent terminated his or her employment, at least in part, based on the complainant's protected activity. Pursuant to the 1992 amendments to the ERA, if the complainant carries this burden, the respondent may avoid liability only by establishing, by clear and convincing evidence, that he or she would have been terminated in the absence of the protected activity. See 42 U.S.C. § 5851(b)(3)(D); Johnson v. Bechtel Const. Co. , 95-ERA-11, slip op. at 2 (Sec'y Sept. 28, 1995); 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); Yule v. Burns Int'l Security Serv. , 93-ERA-12, slip op. at 7-13 (Sec'y May 24, 1995); see generally Grogan v. Garner , 498 U.S. 279 (1991) (discussing higher clear and convincing evidence standard in comparison with preponderance of evidence standard in Section 523(a) of Bankruptcy Code case). Timmons v. Mattingly Testing Services , 95-ERA-40 (ARB June 21, 1996).
CONTRIBUTING FACTOR; RELATIONSHIP TO SHOWING OF PRETEXT
[N/E Digest XI D 1]
In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary stated that "[o]ne way for a complainant to establish that his protected activities were a contributing factor in the adverse employment action is to show that the reason the respondent gave for taking the action was pretextual."
PRETEXT; SHIFTING EXPLANATIONS
[N/E Digest XI D 1]
In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Complainant showed pretext where the evidence established that the Complainant was told that he was being laid off because the Respondent was "getting out of the business" of quality assurance/quality control, although it later explained that it was restructuring rather than getting out of the business.
IXED OR DUAL MOTIVE CASES; BURDENS OF PROOF; NEED FOR AND
DEFINITION OF DIRECT EVIDENCE
[N/E Digest XID 1]
From Carroll v. U.S. Dept. of Labor , 1996 U.S. App. LEXIS 3813 (8th Cir. Mar. 5, 1996)(case below 91-ERA-46):
Whereas Couty [ v. Dole, 886 F.2d 147 (8th Cir. 1989)] and McDonnell Douglas [ Corp. v. Green , 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)] provide the legal framework in pretext cases, Mt. Healthy [ City Sch. Dist. Bd. of Ed. v. Doyle , 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)] and Price Waterhouse v. Hopkins , 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), channel the scope of our inquiry in mixed motive cases. Mt. Healthy and Price Waterhouse provide that where the employee has shown that the challenged employment action was motivated at least in part by an impermissible criterion, the burden then shifts to the employer to prove by a preponderance of the evidence that it would have reached the same decision even in the absence of the illegitimate factor.... This type of Mt. Healthy/Price Waterhouse mixed motive analysis, however, applies only in "dual motive" cases where the complainant produces "evidence that directly reflects the use of an illegitimate criterion in the challenged decision." Stacks v. Southwestern Bell Yellow Pages, Inc. , 996 F.2d 200, 202 (8th Cir. 1993). Direct evidence means evidence showing a specific link between an improper motive and the challenged employment decision. Parton v. GTE N., Inc. , 971 F.2d 150, 153 (8th Cir. 1992).
DUAL MOTIVE
[N/E Digest XI D 1]
From Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996):
Under the dual, or mixed, motive doctrine, when the evidence establishes that discriminatory intent played a role in an adverse action, the employer may avoid liability only by demonstrating that the action would have been taken on the basis of a legitimate motive alone. ... Under the dual motive analysis, the employer "bears the risk that the 'influence of legal and illegal motives cannot be separated. . . .'" Mackowiak, 735 F.2d at 1164 (quoting NLRB v. Transportation Management Corp. , 462 U.S. 393, 403 (1983)).... Furthermore, ... the 1992 Amendments to the ERA provide that an employer can escape liability under the dual or mixed motive analysis only by presenting clear and convincing evidence that the adverse action would have been taken in the absence of the protected activity. Section 211(b)(3)(D) of the ERA, codified at 42 U.S.C. § 5851(b)(3)(D)....
DUAL MOTIVE; WHEN IMPLICATED; COMPLAINANT'S BURDEN
[N/E Digest XI D 1]
In Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995), the Secretary declined to apply the dual motive analysis applied in Mt. Healthy City School Dist. Bd. of Edu. v. Doyle , 429 U.S. 274, 287 (1977), where the Complainant "did not prove by a preponderance of the evidence that Respondent was motivated by an illegitimate reason."
XI D 1 Dual motive; respondent must establish both that it had a legitimate reason for the adverse action and that it would have taken the action for that reason alone
The existence of a legitimate reason for the taking of adverse employment action against a complainant does not, by itself, carry a respondent's burden in a dual motive case. Rather, the record must establish that the respondent would have taken the action for the legitimate reason alone. See Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995) (no evidence that respondent would have reassigned the complainant for the legitimate reason alone, such as evidence that the disciplinary rules mandated reassignment for the offense or that other employees who committed similar offenses had been reassigned).
XI D 1 1992 amendments to ERA raised burden of proof for respondent in dual motive analysis
The Comprehensive National Energy Policy Act of 1992 raised the burden of proof for the respondent in a dual motive analysis in an ERA whistleblower case. Prior to the 1992 amendment, where the fact finder concluded that the complainant has proven that the employer acted, at least in part, for retaliatory reasons, the burden shifted to the employer to prove by a preponderance of the evidence that, although improper motive played a part in its action, it would have taken the same action regarding the complainant even if no improper motive existed. Under the amended ERA, a respondent may avoid the ordering of any relief for alleged ERA violation "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence" of the complainant's protected activities. 42 U.S.C. § 5851(b)(3)(D) (emphasis added by Secretary). The Secretary noted that while there is no precise definition of "clear and convincing evidence," the courts recognize that it is a higher burden than "preponderance of the evidence" but less than "beyond a reasonable doubt." E.g., Grogan v. Garner, 498 U.S. 279, 282 (1991) and Pacific Mutual Life Ins. Co. v. Haslip , 499 U.S. 1, 22 n.11 (1991). Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995).
XI.D.1. Complainant must establish prima facie case before dual motive analysis
In Henrey v. Pullman Power Products, Corp. , 86-ERA-13 (Sec'y June 3, 1987), the Secretary adopted the findings that the Complainant had failed to engage in protected activity and that the management officials involved were unaware of any of the activities on which he based his complaint. Therefore, the Complainant did not establish a prima facie case of discrimination. The ALJ, however, concluded that this case was governed by dual motive discharge cases. The Secretary found that this analysis was misleading because in order to utilize the dual motive analysis, the Complainant first must establish a prima facie case by showing that (a) he engaged in protected activity, (b) the employer was aware of the activity and took adverse action, and (c) the protected activity was the likely cause for the adverse action. Because the Complainant had failed to establish the prima facie case, the dual motive analysis was inappropriate.
XI D 1 Dual motive; preponderance of evidence burden on respondent
Generally, to establish a prima facie case of retaliatory discharge, a plaintiff must show that (1) he or she engaged in protected activity; (2) the employer had actual or constructive knowledge of the protected conduct; (3) the alleged discrimination occurred; and (4) a nexus exists making it likely that the protected activity led to the alleged discrimination. [citations omitted]
Where there is evidence of "dual motive", e.g., where reasons other than retaliation may also account for the employee's discharge, the employer has the burden of proving by a preponderance of the evidence that it would have terminated the employee even if the employee had not engaged in the protected conduct. [citations omitted]
Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2).
XI D 1 Similarity of employer's burden in dual motive to affirmative defense
The only variation to the general format for establishing a case of employment discrimination under the ERA, in which the complainant carries the ultimate burden of persuasion, appears when an employee establishes by a preponderance of the evidence that illegitimate reasons played a part in the employer's decision. The employer then has the burden of proving by a preponderance of the evidence that it would have taken the adverse action against the employee for the legitimate reason alone. The employer's burden in a dual motive case is thus handled much like an affirmative defense: the plaintiff must persuade the fact finder on one point and then the employer, if it wishes to prevail, must persuade it on another. Sluder v. Detroit Edison Co., 93-ERA-32 (Sec'y Apr. 13, 1995) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
XI.D.1. Dual motives
Under Mt. Healthy School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977) (Constitutional adverse action case), if the trier of fact concludes that the employee has proven by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action, the employer, in order to avoid liability, has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287; Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61, 63 (2d Cir. 1982).
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983).
In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the Complainant had established that protected activity was a contributing factor in his discharge, and the burden had shifted to the Respondent to establish by clear and convincing evidence that it would have taken the adverse action in the absence of the protected activity. The ARB acknowledged that there was evidence in the record that suggested that performance deficiencies and conflicts with management might have lead to the Complainant's termination without regard to protected activity, but that found that the Respondent had not established such by clear and convincing evidence. The ARB noted that a respondent bears the risk that the influence of legal and illegal motives cannot be separated. The ARB found strong evidence of retaliatory motive in the swiftness of the Respondent's moving the Complainant from a performance improvement plan to discharge, without evidence of similar actions toward other employees.
XI.D.1.a. Dual or mixed motive cases
Once the employee shows that illegal motive played some part in the discharge, the employer must prove that it would have discharged the employee even if he or she had not engaged in protected conduct. In dual motive cases, the employer bears the risk that the influence of legal and illegal motives cannot be separated. Pogue v. United States Dept. of Labor, 940 F2d 1287 (9th Cir. 1991).
XI.D.1.a. Wright Line standard for dual motive cases
From Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988):
The applicable burden of proof standards in a "dual motive" case arising under the ERA are those standards which were adopted by the National Labor Relations Board in Wright Line, a Division of Wright Line, Inc., 1980 CCH NLRB #17,356 (1980), aff'd sub nom., NLRB v. Wright Line, 662 F.2d 889 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), and approved by the Supreme Court in NLRB v. Transportation anagement Corp., 103 S. Ct. 2469 (1983). See Consolidated Edison Co. of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982) (applying the Wright Line standards in a section 5851 ERA case). See also DeFord v. Secretary of Labor, 700 F.2d 281, 285 (6th Cir. 1983) (recognizing that NLRB standards allocating burdens of proof should apply to section 5851 cases).
The Wright Line test puts upon the employee the initial burden of proving by a preponderance of the evidence that the adverse action taken against the employee was the result, at least in part, of a protected activity. The burden then shifts to the employer to show by a preponderance of the evidence that the discharge or other adverse action would have occurred in any event, regardless of the forbidden motivation.
XI.D.1.a. Risk that motives cannot be separated
When the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons, the dual motive doctrine applies. In such a case, the employer has the burden to show by a preponderance of the evidence that it would have taken the same action concerning the employee even in the absence of the protected conduct. The employer bears the risk that the influence of legal and illegal motives cannot be separated.
Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994).
XI.D.1.a. and b. Dual motive test
Where evidence of a dual motive exists, i.e., where reasons other than retaliation may also account for the employee's termination with his employer, the employer has the burden to prove by a preponderance of the evidence that it would have terminated the employee even if the employee had not engaged in the protected activity. In a dual motive analysis, it is the employer's motivation that is under scrutiny. The risk that the illegal and legal motives behind employee termination merge and become inseparable is place on the employer. It is not enough that the evidence proves that the employer, in retrospect, made its employment decision on legitimate grounds. Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).
XI.D.1.a. and b. Dual motive test
Where evidence of a dual motive exists, i.e., where reasons other than retaliation may also account for the employee's termination with his employer, the employer has the burden to prove by a preponderance of the evidence that it would have terminated the employee even if the employee had not engaged in the protected activity. In a dual motive analysis, it is the employer's motivation that is under scrutiny. The risk that the illegal and legal motives behind employee termination merge and become inseparable is place on the employer. It is not enough that the evidence proves that the employer, in retrospect, made its employment decision on legitimate grounds. Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).
XI.D.1.a. Dual motive
Petitioner sought review of Secretary's dismissal of her complaint and rejection of an ALJ's determination that the Navy had unlawfully retaliated against her for engaging in whistleblowing activity protected under CERCLA, WPCA, RCRA, and TSCA. The court cited Mackowiak and stated that "[i]n dual motive cases, the employer bears the risk that 'the influence of legal and illegal motives cannot be separated....'" The court concluded that the Secretary failed to separate adequately the influence of the mixed motives for imposing discipline against petitioner and therefore failed to meet its burden of proving that the Navy's adverse actions would have occurred even if petitioner had not engaged in whistleblower activity. Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1291 (9th Cir. 1991).
XI.D.1.a. Risk that motives cannot be separated
When the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons, the dual motive doctrine applies. In such a case, the employer has the burden to show by a preponderance of the evidence that it would have taken the same action concerning the employee even in the absence of the protected conduct. The employer bears the risk that the influence of legal and illegal motives cannot be separated.
Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994).
XI.D.1.a. Dual motive
Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984).
The Court of Appeals adopted the Secretary of Labor's findings that retaliation was at least a motivating factor in the discharge of Mackowiak, a quality control inspector, and that his Employer had a legitimate business reason, Mackowiak's bad attitude, to terminate him. The court found appropriate the application of the Mount Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977), test for dual motive discharge cases which the Supreme Court approved under the National Labor Relations Act. Once the plaintiff has demonstrated that the protected activity played a role in the employer's decision, the burden shifts to the employer to persuade the court that it would have discharged the plaintiff even if the protected activity had not occurred. The court then recognized that it makes sense to allocate the burden of proof to the employer once the employee has shown that an illegal motive played some role in the employer's decision. The employer is the wrongdoer who should bear the risk that the influence of legal and illegal motives cannot be separated. However, in this case neither the Secretary of Labor nor the Administrative Law Judge differentiated between protected and unprotected manifestations of "bad attitude". Without a serious effort on the part of the Administrative Law Judge and the Secretary of Labor to sort out the motives involved, review is impossible.
XI.D.1.b. Dual motive; "but for" test
Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982).
XI d 2
[Nuclear and Environmental Digest XI D 2]
DUAL OR MIXED MOTIVE ANALYSIS; ALJ
NEED NOT REACH SUCH ANALYSIS WHERE COMPLAINANT FAILED TO ESTABLISH BY A
PREPONDERANCE OF THE EVIDENCE THAT HIS PROTECTED ACTIVITY EITHER MOTIVATED OR
CONTRIBUTED TO THE ADVERSE ACTION
In Seetharaman v. Stone & Webster, Inc. , ARB No. 06-024, ALJ No. 2003-CAA-4 (ARB Aug. 31, 2007), the Complainant contended on appeal that the ALJ erred when he did not employ mixed motive analysis and used the same legal standards for both the ERA and environmental laws. The ARB found, however, that the Complainant failed to introduce any credible evidence to rebut the Respondent's evidence that he was included in a RIF because he was the least productive member of his group. Thus, he had failed to establish by a preponderance of the evidence that his protected activity either motivated or contributed to the adverse action, and therefore the ALJ had no reason to engage in dual motive analysis.
Burden of proof, generally
Zinn v. University of Missouri, 93-ERA-34, 93-ERA-36 (ALJ May 23, 1994)
A complainant has the initial burden to establish a prima facie case of discrimination for a protected conduct. The complainant must show that he engaged in a protected activity, that the respondent was aware of the protected activity, and that the respondent took adverse action against the complainant. The complainant's evidence must raise an inference that the protected activity was the likely motive for the adverse action, for example, by showing the proximity in timed of the adverse action to the protected activity.
After the complainant establishes the prima facie case, the respondent can rebut the presumption by showing that the adverse action was motivated by a legitimate reason. If the respondent successfully rebuts the complainant's prima facie case, the complainant may then prove that the reasons proffered by the respondent were not the true reasons for the adverse action.
However, if the trier of fact determines that a respondent's adverse treatment of a complainant was motivated both by illegal and legitimate reasons, then the dual motive test becomes applicable. Under the dual motive test, the respondent, in order to avoid liability, has the burden of persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.
[Nuclear & Environmental Whistleblower Digest XI D 2]
BURDEN OF PROOF; WHEN RESPONDENT'S CLEAR AND CONVINCING EVIDENCE BURDEN IS APPLICABLE
In Belt v. United States Enrichment Corp. , ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the ARB corrected the ALJ's erroneous statement of the employer's burden of proof in an ERA whistleblower case. The ALJ had indicated that once a complainant establishes a prima facie case, the respondent "must establish by clear and convincing evidence that it took the unfavorable action for a legitimate, nondiscriminatory business reason, and that it was the same as it would have taken, in the absence of the employee's protected activity." The Board, however, stated that "[o]nce a complainant establishes a prima facie case of discrimination, the respondent needs only to 'articulate some legitimate, nondiscriminatory reason' to 'discharge [its] burden of proof' at this stage of the litigation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)." The Board continued:
The employer's clear and convincing evidence burden is in the nature of an affirmative defense and arises only when the complainant has proven, by a preponderance of the evidence, that the employer discriminated, at least in part, because of protected activity. See Kester v. Carolina Power and Light Co., ARB No. 02 007, ALJ No. 00 ERA 31, slip op. at 8 (ARB Sept. 30, 2003). The ALJ here appears to have confused the Secretary of Labor's gatekeeping, investigative duties with her adjudicative role. Compare 42 U.S.C.A. § 5851 (b)(3)(B) (If, after filing the complaint but before the hearing, an ERA complainant makes a "prima facie" case that his protected activity contributed to the unfavorable personnel action, the Secretary shall not investigate the complaint "if the employer demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of [protected activity].") with 42 U.S.C.A. § 5851 (b)(3)(D)(In the adjudicatory phase of the litigation, if the complainant demonstrates a violation of the ERA, the Secretary may nevertheless not grant relief "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [protected activity]." See also Kester, slip op. at 5 6.
Slip op. at n.2.
[Nuclear & Environmental Whistleblower Digest XI D 2]
DUAL MOTIVE ANALYSIS; TRIGGER BY DIRECT OR CIRCUMSTANTIAL EVIDENCE
In Pafford v. Duke Energy Corp. , ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), the ALJ erred in stating: "Where the [ERA] complainant produces direct evidence of discrimination, and the employer does not effectively rebut this evidence, the employer can avoid liability only by showing by clear and convincing evidence that it would have taken the same action in the absence of protected activity." Rather, the ARB has held that "to trigger dual motive analysis, the ERA 'requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial , that the protected activity contributed to the employer's decision.' Kester v. Carolina Power and Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31, slip op. n. 19 (ARB Sept. 30, 2003) (emphasis added). Cf. Desert Palace Inc. v. Costa, 123 S. Ct. 2148 (2003) (Title VII plaintiff not required to present direct evidence of discrimination in order to obtain a mixed motive [dual motive] jury instruction)."
[Nuclear & Environmental Whistleblower Digest XI D 2]
MIXED MOTIVE; NO INVOCATION WHERE ACTIONS WERE NOT SHOWN TO BE ADVERSE OR WHERE ADVERSE ACTION WAS NOT SHOWN TO BE IMPROPERLY MOTIVATED; COMPLAINANT MAY BE ASKED TO IMPROVE FORM OF COMMUNICATION
/PUBLIC/WHISTLEBLOWER/DECISIONS/ARB_DECISIONS/TSC/00tsc02b.htm"> Dierkes v. West Linn Wilsonville School District , ARB No. 02 001, ALJ No. 2000 TSC 2 (ARB June 30, 2003), the ARB rejected Complainant's argument that the ALJ had erred in failing to apply the mixed motive analysis where the actions and statements of Respondent complained about by Complainant either did not entail tangible job consequences (and therefore could not be considered adverse action) or where the one adverse job action B imposition of a Goal in Complainant's performance evaluation standards for more professional communication B was not shown to have been imposed because of Complainant's activities as an environmental activist (even though there was temporal proximity). Rather, the record contained a plethora of e mails demonstrating Complainant's recurring problems in interpersonal communications. The ARB also observed that Complainant, a kindergarten teacher who had raised issues about PCBs and asbestos in the school, had sent an e mail to the principal asking what percentage of her alleged communications difficulties he attributed to her activism. The principal responded that while Complainant's "concerns and questions about environmental issues were important in removing PCBs and asbestos from the school, her >demeanor and tone [had] vacillated between calm inquiry and angry outbursts,' and he still would have encouraged her to improve in communicating professionally even if the events of the summer had not occurred." The ARB thus concluded that
The fact that the unprofessional communications encompassed Dierkes' environmental concerns as well as her employment and career issues does not make this a dual motive case. No mixed motive analysis is required because Dierkes has not proven that there was a discriminatory reason for imposing Goal Three.[5]
_________
[5]We note that, consistent with the legitimate non discriminatory reason proffered for imposing Goal Three (i.e., Dierkes' unprofessional pattern of communication), the goal focused on the form of her communications with others, not the content. Dierkes has not shown that the Respondent's rationale was pretextual.
DUAL MOTIVE ANALYSIS; WHEN INVOKED BY DIRECT EVIDENCE
[N/E Digest XI D 2]
The dual motive analysis is used where the complainant produces "'evidence that directly reflects the use of an illegitimate criterion in the challenged decision.' [ i.e., ] evidence showing a specific link between an improper motive and the challenged employment decision." Talbert v. Washington Public Power Supply System , 93-ERA-35, slip op. at 4 (ARB Sept. 27, 1996), quoting Carroll v. U.S. Dep't of Labor , No. 95-1729, 1996 U.S. App. LEXIS 3813 at *9 (8th Cir. Mar. 5, 1996), quoting Stacks v. Southwestern Bell Yellow Pages, Inc. , 996 F.2d 200, 202 (8th Cir. 1993).
In Talbert , the Board continued that "[e]vidence of actions or remarks of an employer tending to reflect a discriminatory attitude may constitute direct evidence. ... such evidence does not include stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process." Id. , slip op. at 4 (citations omitted).
DUAL MOTIVE; CLEAR AND CONVINCING STANDARD UNDER CNEPA
AMENDMENTS TO ERA; WHEN EMPLOYER'S BURDEN ATTACHES
[N/E Digest XI D 2]
Under the CNEPA amendments to the ERA, "the clear and convincing evidence standard applies only if a complainant establishes by a preponderance of the evidence that the adverse action was motivated, at least in part, by retaliatory intent; the amended Section 211(b)(3) of the ERA heightens an employer's burden of proof only under the dual, or mixed, motive doctrine. Section 211(b)(3)(D) of the ERA, codified at 42 U.S.C. § 5851(b)(3)(D)...." Seater v. Southern California Edison Co ., 95-ERA-13, slip op. at 21 (ARB Sept. 27, 1996)(case citations omitted).
DUAL MOTIVE ANALYSIS; WHEN IMPLICATED; EVIDENCE OF HIGH
DEGREE OF PERSONAL ANIMOSITY
[N/E Digest XI D 2]
In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Respondent contended that it declined to fill a position for which the Complainant had applied based on pressures to downsize. Where the record indicated that the Complainant had a number of antagonistic exchanges with the employee who made the decision not to fill the position, the Secretary concluded that the degree of animus exhibited indicated that the decision not to fill the position was based at least in part on discriminatory intent.
XI D 2 Direct evidence of animus
In Harrison v. Stone & Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995), the Secretary indicated that it was questionable whether the Respondent's stated legitimate, nondiscriminatory reason for demoting the Complainant was true -- although it could have been accepted without more evidence. Since there was direct evidence of animus against the Complainant, and other circumstances surrounding the demotion were indicative of a retaliatory motive for the demotion, the Secretary found that the dual motive analysis was required.
XI.D.2. Dual motive
Where Complainant did not show that discriminatory motives played any part in Respondent's adverse performance appraisal, the dual motive analysis was not applicable. Jain v. Sacramento un. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991).
XI.D.2. Dual motive analysis not applicable
Where there was no direct or circumstantial evidence tending to prove, in whole or in part, that complainant's subjective charge that his termination was in retaliation for protected activity the dual motive analysis was not applicable. St. Laurent v. Britz, Inc., 89-ERA-15 (Sec'y Oct. 26, 1992), slip op. at 4, and n.3.
XI.D.2. Direct evidence of discrimination
The order and allocation of burdens of proof and production in Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983) are applicable only where circumstantial evidence of discrimination is presented. If direct evidence of discrimination exists, and it is not effectively rebutted, a respondent can avoid liability only by showing it would have taken the same action in the absence of protected activity. Blake v. Hatfield Elec. Co., 87-ERA-4 (Sec'y Jan. 22, 1992). Bartlik v. Tennessee Valley Authority, 88- ERA-15 (Sec'y June 24, 1992), slip op. at 4.
XI.D.2. Relationship between dual motive and pretext analyses
Where the complainant contends that the employer's motives were wholly retaliatory and the employer counters that its motives were wholly legitimate, neither party is relying on a "dual motive" theory in advancing its case. In this circumstance, use of the "pretext" legal discrimination model is appropriate because it focuses on determining the employer's true motivation rather than weighing competing motivations. McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991). Accord Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
XI.D.2. Dual motive test invoked
If an ALJ concludes that the complainant's termination resulted in part from engaging in protected activity -- that is, that there were dual motives -- the complaint could not be dismissed by the employer merely articulating a legitimate, nondiscriminatory reason for the termination. Instead, it would have to show that it would have reached the same decision even in the absence of protected conduct. Thompson v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993).
XI.D.2. Dual motive; when implicated
The dual motive test only comes into play if the Complainant establishes a prima facie case and there is evidence of both legitimate and improper motives for the adverse action taken against the Complainant. See Henry v. Pullman Power, 86-ERA-13 (Sec'y June 3, 1987), slip op. at 2. Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y July 26, 1988), slip op. at 6.
XI.D.2. Dual motive analysis not applicable where complainant fails to show that discriminatory motive played a part
Where the complainant does not show that discriminatory motives played any part in the respondent's decision to terminate her, the dual motive analysis is not applicable. See Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1289-91 (9th Cir. 1991). Hancock v. Nuclear Assurance Corp., 91-ERA-33 (Sec'y Nov. 2, 1992), slip op. at n2.
XI.D.2. When implicated
Where the ALJ did not find, and the record contained no direct or circumstantial evidence tending to prove that the protected activity played some role in the termination of the complainant's employment, the dual motive analysis is not applicable.
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), slip op. at n.4.
XI.D.2. Harmless for ALJ to discuss dual motive where ALJ also found pretext
An ALJ's discussion of the dual motive analysis is harmless where the ALJ also analyzed the case under pretext and made an explicit finding of pretext. Francis v. Bogan, Inc., 86- ERA-8 (Sec'y Apr. 1, 1988) (dual motive analysis is applicable only where an employer's adverse action was motivated by two reasons, one legitimate and one prohibited).
XI.D.3.a. Proof of discriminatory motive; disparity of treatment
In a dual motive case, one factor cited by the court in finding that the employer had failed to carry its burden of proving that the disciplinary action would have occurred in the absence of the employee's whistleblowing activity was evidence presented that the disciplinary actions taken against the whistleblower were substantially disproportionate to discipline imposed by the employee in the past. Pogue v. United States Dept. of Labor, 940 F2d 1287, 1291 (9th Cir. 1991).
XI.D.3.b. Termination procedure
Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982).
XI.D.3.c. Complainant's misappropriation of company records
In Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), the complainant established by a preponderance of the evidence that his suspension and discharge were motivated in part by his protected activity. Id. , slip op. at 9-10. Nevertheless, the complainant was suspended after he was found to have about fifteen personnel files of other Quality Control Inspectors hidden under the driver's seat as he attempted to leave the plant site. Id. , slip op. at 4-5. The Secretary concluded that no employer need tolerate the misappropriation of confidential company records. Hence, the respondent was found to have carried its burden of showing that it would have suspended and fired the complainant for that conduct even in the absence of his protected activities. Id. , slip op. at 11-12.
The Secretary noted that courts have given employers considerable discretion to protect their legitimate interests in confidentiality, and have upheld the immediate termination of employees who appropriated records without authority. See Jeffries v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980) (Title VII case; employer may act on a belief (even a wrong belief) that a company policy has been violated; employee may not appropriate confidential documents unless he shows that they were in danger of being destroyed because there are formal legal avenues for obtaining evidence); Hodgson v. Texaco Inc., 440 F.2d 662 (5th Cir. 1971) (employee's appropriation of records without permission for use in lawsuit against employer is not protected activity under the Fair Labor Standards Act). Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Title VII case) and Mt. Healthy School Dist. Bd. of Education v. Doyle, 429 U.S. 274 (1977) (Constitutional adverse action case). He noted that Mt. Healthy had been applied to section 5851 cases by the Second Circuit. Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982); Jaenisch v. United States Dep't of Labor, __ F.2d __ (No.81-4149, 2d Cir. June 28, 1982). Cf. DeFord v. Secretary of Labor, __ F.2d __ (Nos. 81-3228 etc., 6th Cir. Feb. 10, 1983).
XI.D.3.d. Complainant's choice to observe rather than prevent toxic dumping
In Pooler v. Snohomish County Airport, 87-TSC-1 (ALJ Mar. 10, 1988), Complainant was suspended for five days and demoted as a result of a dumping incident that he choose to observe rather than prevent. Complainant learned of plan to dump possibly toxic substances on Respondent's property by the maintenance department. Complainant was Airport Public Safety Supervisor. Rather than to take steps to prevent the dumping, Complainant choose to observe the dumping from a concealed location.
The ALJ found that Respondent would have received the suspension because he deliberately permitted the illegal dumping (apparently in an attempt to expose wrongdoing by the maintenance supervisor, who he disliked), despite the fact that Respondent may have also been motivated in part by Complainant's protected activity of divulging the incident to the press and outside agencies. * /
The ALJ found that the subsequent demotion was not based on Complainant's decision to file a grievance as to the suspension, but on the discovery by Respondent that Complainant had attempted to cover up the fact that he knew about the plan to dump the substances much earlier than he had been saying he had, and on his earlier gross lapse in judgment in attempting to prove misconduct rather than to prevent it regardless of the possible health hazards and in using other employees in the observation of the dumping. Although part of the reason for the demotion may have been continuing contact with the media, the ALJ concluded that these circumstances more than amply supported the decision to demote Complainant. The ALJ also took into consideration that the maintenance supervisor was also demoted, and that the events in the case unfolded over several days so that Complainant's failure to prevent the dumping could not be ameliorated by the need for a split second decision.
_________
*
/ The ALJ had found that upper management's direction to
its employees not to contact the media on their own was an
improper gag order.
[Nuclear & Environmental Digest XI D 3 d]
DUAL MOTIVE; INTERVIEW PROCESS; PRESENCE OF BIASED INTERVIEWER ON PANEL MAY BE OVERCOME BY PROOF THAT SAME CONCLUSION WOULD HAVE BEEN REACHED EVEN IN ABSENCE OF COMPLAINANT'S PROTECTED ACTIVITY
In Higgins v. Alyeska Pipeline Services Corp. , 1999-TSC-5 (ALJ Dec. 12, 2000), the ALJ issued a recommended decision finding that circumstantial evidence established that one member of a four member panel who interviewed Complainant for a job was influenced in her scoring of Complainant by her knowledge of Complainant's protected activity. The ALJ therefore evaluated the case under the dual motive test, which requires Respondent to prove by a preponderance of the evidence that it would have reached the same conclusion in the absence of protected activity.. See Dartey v. Zack Company of Chicago , 1982-ERA-2 at 6 (Sec'y, Apr. 25, 1983); Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274, 287 (1987). The ALJ detailed the operations of the interview panel which did not discuss scores until completion of all interviews, and concluded that the panelist who was influenced by Complainant's protected activity did not cause Complainant not to be selected for the job. Excluding the one panelist's score, Complainant was still ranked only seventh out of eleven candidates for three jobs. No panelist placed Complainant in the top three. The ALJ noted in accessing the fairness of the selection process that:
The Secretary has noted that "employee protection and anti- discrimination statutes [do] not displace an employer's judgment of what qualities it seeks in its employees and its good faith evaluation of those qualities." Blake v. Hatfield Electric Co. , 87-ERA-4, at 8 (Sec'y Jan. 22, 1992). An employer's misjudgment of an applicant's qualifications is relevant insofar as it is "probative of whether the employer's reasons are pretexts for discrimination." Id . (quoting Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 259 (1981) ). The key inquiry is not whether Respondent designed the hiring process perfectly in order to select the "right" applicant but whether the process provided a pretext for discriminatory intent.
[Nuclear & Environmental Digest XI D 3 d]
DUAL MOTIVE; VIOLATION OF CLASSIFICATION REVIEW POLICY
In Graf v. Wackenhut Services, L.L.C. , 1998-ERA-37 (ALJ Dec. 16, 1999), pet. for review withdrawn Graf v. Wackenhut Services, L.L.C. , ARB Nos. 00- 024 and 25 (ARB Feb. 16, 2000), Complainant was a program manager for the Central Alarm Station at Rocky Flats Environmental Technology Site, and alleged that adverse employment action was taken against him in retaliation for his disclosure of site safety and security information to CBS News. Respondent argued that the adverse employment actions were the result of Complainant's knowing violation of a Department of Energy classification order (DOE Order No. 5650.2B requiring pre-disclosure review of potentially classified information), and his refusal to follow such rules in the future.
The ALJ found that Complainant, although a derivative classifier and possessing a "Q" level security clearance, was required to follow the DOE Order even though the disclosures were oral and did not include document disclosure, and despite Complainant's assertion that the disclosures fell within a "personal opinion" exception. The ALJ also found, that assuming arguendo that Complainant did not actually violate the DOE Order, Respondent's managers sincerely believed that Complainant had violated the policy; such a belief negates a finding of retaliatory motive. See Dartey v. Zack Co. of Chicago , 1982-ERA-2, slip op. at 7 (Sec'y Apr. 25, 1983), citing Jeffries v. Harris County Community Action Ass'n , 615 F.2d 1025, 1036 (5th Cir. 1980). Moreover, the ALJ found that Complainant knew he was violating the disclosure rules.
The ALJ noted that Complainant made a compelling argument that Respondent had not enforced the classification review policy in the past. The ALJ, however, observed that a new general manager assumed his position several months before Complainant's disclosure, and had emphasized the importance of following site rules, regulations and policies warning employees that the rules would now be enforced. The ALJ found Respondent's need to begin enforcing the DOE classification policy to be compelling. Thus, the ALJ found that the adverse employment actions were motivated, at least in part, by Complainant's knowing violation of the site disclosure and classification rule, and his refusal to follow the policy in the future.
The ALJ's analysis, however, continued with a consideration of whether Respondent's actions were partially motived by Complainant's failure to follow the chain of command. The ALJ noted case law indicating that an employer's expectation that an employee interact with others in the company as a "team player" is not, standing alone, a proscribed criterion; however, where that expectation is extended to a point where it interferes with protected activity, it is prohibited. Based on the facts of the case, the ALJ held that Respondent's actions in attempting to encourage Complainant to become part of the team were intended to dissuade Complainant from engaging in protected activity.
Thus, the ALJ found that Respondent's actions were motivated both by legitimate and illegitimate motives, and that Respondent had not presented clear and convincing evidence that it would have taken the same employment actions if Complainant had not engaged in the protected activity.
[N/E Digest XI D 3 d]
DUAL MOTIVE ANALYSIS; COMPLAINANT INSTIGATED A BRAWL
In Combs v. Lambda Link , 95-CAA-18 (ARB Oct. 17, 1997), the ARB applied dual motive analysis where Complainant had communicated concerns about asbestos exposure to Respondent's CEO prior to Complainant's discharge, but found "it beyond question that [Complainant's] activity in instigating or provoking [a] brawl which resulted in his being injured superseded his protected activity and provided ample independent grounds for his discharge."
Compare Abraham v. Lawnwood Regional Medical Center , 96-ERA-13 (ARB Nov. 25, 1997), where Complainant was discharged for his excessive response to an poorly timed interruption by his supervisor; the ARB held that the complaint did not present a dual motive case because Complainant had not proved by a preponderance of the evidence that his termination from employment was partially motivated by protected activities.
DUAL MOTIVE; CLEAR AND CONVINCING EVIDENCE
[N/E Digest XI D 3 d]
In Talbert v. Washington Public Power Supply System , 93-ERA-35 (ARB Sept. 27, 1996), Respondent established that it would have transferred Complainant even if Complainant had not engaged in protected activity where Complainant's decisions about reactor core operators had contributed to an oscillation event (the first in many years) that resulted in the reactor core having to be shut down manually. Complainant in the past had a strained relationship with the reactor core design group. In evaluating the oscillation event, Respondent determined that the groups that operated the reactor and that designed the reactor core should have closer cooperation because the question had arisen whether the event resulted from operator error or too limited operating margins due to core design. Complainant's presence made such cooperation difficult, and the decision was made to transfer him even though he was not solely responsible for the strained relationship. The oscillation event had been very serious; thus, in its aftermath Respondent had a compelling reason to transfer Complainant even if he had never engaged in protected activity.
XI.D.3.d. Inappropriate behavior by complainant
In Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y Oct. 6, 1992), the Secretary indicated that even if the complainant had managed to establish that his protected activity played a part in his alleged firing (which she had already found he had not), under the dual motive analysis the respondent had established that it would have fired the complainant in any event because of his obscene and highly inappropriate behavior. Citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Title VII case).
XI.D.3.d. Respondent's motive is at issue in determining the reason for adverse action, not Complainant's motive
In Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec'y March 13, 1992), the Complainant was employed by the Respondent, a water treatment facility, as as the head of a laboratory that analyzed water samples pursuant to an ad valorem user charge system in which the users of the facility took their own water samples. Over a period of years, the Complainant reported extensively to PVSC officials that the user charge system violated the FWCPA. The Complainant was subsequently terminated from his employment with PVSC.
The Secretary held that the ALJ erred in considering the Complainant's underlying motive for alleging violations in determining whether the Respondent had a dual motive for terminating the Complainant. "The FWCPA operates to protect an employee's conduct in reporting violations of the statute notwithstanding his motives." It is the Respondent's motive, not the Complainant's, that is under scrutiny. Upon finding that the Respondent's action was motivated by legitimate or illegitimate reasons, it may be determined whether the Respondent would have taken the same actions against the Complainant in the absence of the Complainant's protected activity.
Affirmed by the Court of Appeals for the Third Circuit. 992 F.2d 474 (3rd Cir. 1993).
XI. D. 3. d. Other cases; illustrative cases of dual motive
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.
The Secretary agreed with the ALJ's determination, under the dual motive analysis, that the Respondent did not carry its burden of proving that Complainant would have been fired solely for lying about the phone call had he not engaged in protected activity in writing the internal memorandum about environmental violations.
XI.D.3.d. Impact of fact that whistleblowing incident made employer more certain of its decision to fire
In Drew v. Jersey Central Power & Light Co., 81-ERA-3 (ALJ June 16, 1982), adopted (Sec'y Jan. 13, 1984), the ALJ concluded that when a performance evaluation was given to Complainant that was an extraordinary downgrading from prior evaluations, the reviewer most probably had in mind an incident several months earlier when Complainant went the NRC regarding a welding deficiency, but also concluded that there was amble evidence of record providing good reason for Respondent to take a careful look at Complainant's performance and to begin a formal discipline or control process since Complainant had been for many months a stubborn, headstrong employee. The ALJ found that this evidence was so strong, that the circumstantial evidence of a retaliatory motive did not prevail event to establish a prima facie case. Bearing in mind, however, that the case law he relied was relatively new, the ALJ also found that even if a prima facie case was established, the preponderance of the evidence was that Respondent would have disciplined Complainant even if he had not engaged in protected activity. The ALJ quoted the Supreme Court in Mt. Healthy as follows:
A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance records and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.
Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 286 (1977). The ALJ noted that Complainant's most recent supervisor testified that he knew about the "whistleblowing" incident, but credibly testified that he approached Complainant with an open mind and that the decision to terminate Complainant's employment reflected his opinion as a responsible supervisor.
To the same effect, see Liverett v. Tennessee Valley Authority, 82-ERA-1 (ALJ Dec. 16, 1981), adopted (Sec'y July 21, 1982), in which Complainant was fired several months after having made a safety complaint, but which was found to have been based on poor performance and the precipitating event of her permitting a person without a radiation monitoring badge into a restricted area. The ALJ indicated that an employee ought not to be able to prevent an employer from assessing job performance merely because he or she had at some point engaged in protected activity.
XI.D.3.d. Complainant's mental instability
Where the record established one instance of a supervisor exhibiting animus against Complainant for reporting a safety concern to the NRC, where there was also overwhelming evidence that Complainant's work place behavior was aberrant, the Secretary found that Respondent had established that the requirement for mental stability of the work force at nuclear facilities justified the actions taken against Complainant, and that Respondent would have barred Complainant from work in a nuclear plant and transferred him to a non-nuclear work site because of that aberrant behavior in the work place, even if Complainant had not engaged in any protected activities.
Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994).
XI.D.3.d. Dual motive case
When the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons, the dual motive doctrine applies. In such a case the employer has the burden to show by a preponderance of the evidence that it would have taken the same action concerning the employee even in the absence of the protected conduct. The employer bears the risk that the influence of legal and illegal motives cannot be separated. [citations omitted]
In Pillow v. Bechtel Construction, Inc., 87- ERA-35 (Sec'y July 19, 1993), the evidence indicated that Complainant was transferred from night shift to day shift because Respondent's managers knew of rumors that Complainant had tipped off the NRC about some employees' drug use and that threats against Complainant had been made over the public address system during the night shift. The Secretary held that protection of an employee is generally a legitimate management concern. Nevertheless there was also evidence of another motive for the shift switch: no one bothered to inform Complainant of the shift switch until after he missed the day shift and he showed up for work at the night shift; as a consequence of missing the day shift Complainant lost some overtime eligibility; Complainant credibly testified that his superiors threatened him about safety related complaints and warned him that he was being set for discharge through the switch to day shift.
Given the failure of Respondent to notify Complainant of the shift switch and the penalty of loss of overtime eligibility (even though it was not Complainant's fault for failing to show up for the day shift), and particularly egregious threats, the Secretary found that Respondent did not sustain its burden of showing that would have made the transfer even if Complainant had not been engaged in protected activity. The Secretary also held that "Complainant" established that the real reason for the transfer to day shift was his engaging in protected activities.
XI.D.3.d. Complainant's mental instability
Where the record established one instance of a supervisor exhibiting animus against Complainant for reporting a safety concern to the NRC, where there was also overwhelming evidence that Complainant's work place behavior was aberrant, the Secretary found that Respondent had established that the requirement for mental stability of the work force at nuclear facilities justified the actions taken against Complainant, and that Respondent would have barred Complainant from work in a nuclear plant and transferred him to a non-nuclear work site because of that aberrant behavior in the work place, even if Complainant had not engaged in any protected activities.
Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994).
XI.D.3.d. Employees knew that offense was ground for discharge
In Janenisch v. Chicago Bridge & Iron Co., 81- ERA-5 (ALJ July 11, 1983), the ALJ found, under the "but for" test of the dual motive analysis, that Complainant would have been discharged even if he had never spoken to a Nuclear Regulatory Commission inspector. Complainant had failed to turn in a weld wire. The ALJ found that Respondent established that this was considered an offense for which an employee would be terminated and that everyone knew this. There was testimony that foremen had informed their workers, including Complainant, that this was an offense that would result in termination; that safety guidelines provided that welding rods were to be stored in locked areas; that another person had been fired the day before for the same reason; that only certain persons were authorized to touch welding rods; that the superintendent discussed the situation for about an hour and half before the firing. The ALJ noted Complainant's presentation of testimony that welding rods had often been left in the work area, but dismissed it because in those instances the names of culprits were not known, and because the evidence was that there was tight control over rod use.
[Editor's note: The Secretary's final order, if any, is not in the OALJ or the OAA libraries. The ALJ's earlier decision had been adopted by the Secretary, but there was an unpublished remand from the Second Circuit, apparently directing a change in the legal analysis. I do not have a copy of that order.]
XI.D.2.d.
Misconduct
In Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 24, 1994), the Respondent had both a legitimate and an impermissible reason for bringing disciplinary charges against the Complainant, and the dual motive analysis applied. Relying on the ALJ's credibility finding regarding a school board's member, who the ALJ found to be sincere in expressing that the only movating factor leading the school board to file charges against the Complainant was the gravity of the act involved (tampering with a air quality testing device), the Secretary determined that the Respondent carried its burden of showing that it would have brought charges against the Complainant even if he had not engaged in protected activities.
In Sawyers, the Complainant continually pushed charges that the school was taking inadequate action to remedy the presence of asbestos in the schools. He was observed on one occasion apparently releasing asbestos particles into an air quality testing device. Analysis of the machine indicated that it had been tampered with because, inter alia, particles were found in the device that could not have been airborne.
XI.D.3.d.
Poor attitude versus manifestation of protected
activity
In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994), the Respondent maintained that it discharged the Complainant because of poor work performance and poor attitude.
Reviewing the record, however, the Secretary concluded that what the Respondent viewed as poor attitude were nothing more than the result and manifestation of the Complainant's protected activity.
The Secretary stated that the right to engage in statutorily protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and shop discipline. See Asst. Sec. and Lajoie v. Environmental anagement Sys., Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 10-11, and cases cited therein, appeal dismissed, No. 92-2472 (1st Cir. Feb. 23, 1993); Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7.
The Secretary determined that the balance weighs heavily in Complainant's favor in the instant case. Even if the incident immediately provoking the discharge involved the use of intemperate language by Complainant, the incident was private, was far from egregious, was not indefensible in the context of the escalating conflict, and thus did not remove Complainant from statutory protection.
In sum, the Secretary concluded that Complainant's termination was based solely on his "attitude," which in this case was a manifestation of his protected complaining. Even if the decision also was based in part on Complainant's performance and/or some legitimate attitudinal problems, Respondent failed to prove that it would have fired Complainant in the absence of his protected activity that immediately preceded his discharge.
[ Editor's note: It is unclear whether the Secretary's position is that Respondent's articulated reason was not credible, or that it was pretextual.]
XI.D.3.d. Respondent's actions indicative of lack of retaliatory motive
In Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), the fact that Respondent did not act precipitatively in disciplining Complainant for his refusal to follow written notification procedures was indicative that its motives were to gain Complainant's compliance rather than retaliation. Furthermore, at a disciplinary hearing, the charges were restricted to matters of competency and efficiency and specifically excluded any consideration of Complainant's writing of letters to NRC and other agencies.
XI. D. 3. d. Other cases; illustrative cases of dual motive
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.
The Secretary agreed with the ALJ's determination, under the dual motive analysis, that the Respondent did not carry its burden of proving that Complainant would have been fired solely for lying about the phone call had he not engaged in protected activity in writing the internal memorandum about environmental violations.
XI.D.3.d. Protected activity does not prevent employer from taking legitimate adverse actions
Where an employer has a legitimate management reason for taking adverse action against an employee, the employer is not required to hold off such action simply because the employee is engaged in protected activity. In Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), Complainant declined to follow, in the case of end users who asked him to store packages, written procedures for notifying end users that their radioactive packages were ready for pick up and for notifying the supervisor when such packages were not picked up on time because he believed the intent of the notification requirements had been met. The Secretary held that when and to whom the procedures should or should not apply was not a matter within Complainant's responsibility, that it was his duty to carry out management's instructions, and that when he did so intermittently, Respondent was not required to let the situation continue.
XI.D.3.d. Respondent's subjective belief
In Ashcraft v. University of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988), the fact that a charge that Complainant failed to wipe test the generator was not substantiated by the record did not establish pretext where Respondent believed that the failure had occurred and relied on it, even though Respondent did not investigate the charge.
XI D 3 d Dual motive; clear and convincing evidence of military style discipline for disobeying order
In Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995), the Respondent contended that it discharged the Complainant for refusing her supervisor's order to sign a memorandum indicating her understanding of the operation of a special door lock. Applying the dual motive analysis and the clear and convincing evidence standard, the ALJ faulted the Respondent for not showing that it discharged other employees "who committed a minor act of insubordinate conduct."
In reversing the ALJ, the Secretary found that the ALJ had held the Respondent to a standard higher than clear and convincing evidence. He rejected the ALJ's implicit assessment that the Respondent's examples of other instances involving discharge for refusing to obey a supervisor's order involved a less significant or important matter than the order disobeyed by the Complainant. The Secretary found the record replete with evidence that the Respondent operated under a system of military-style discipline in which disobeying any order was considered a serious offense. The Secretary distinguished a prior instance in which the Complainant was not discharged for insubordination because it consisted of questioning her supervisor's judgment rather than refusal of a direct order.
XI D 3 d Bypassing the chain of command
In Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order denying motion for reconsideration), the Secretary had issued a decision, and the Respondent filed a motion for reconsideration. In addition, the Chairman of the Nuclear Regulatory Commission wrote to the Secretary expressing his concern regarding the effect of the Secretary's decision.
The Secretary's decision had been that an employee who refuses to reveal his or her safety concerns to management and asserts the right to bypass the 'chain of command' to speak directly with the Nuclear Regulatory Commission is protected under the ERA. The Respondent characterized this holding as providing an employee with an "absolute right" to refuse to report safety concerns to the plant operator, if he plans to inform the NRC of the safety concerns. The Secretary found this not to be an accurate interpretation of his holding; rather the right of an employee to protection for "bring[ing] information directly to the NRC," and his duty to inform management of safety concerns, are independent and do not conflict, although discerning an employer's motivation when it disciplines an employee in these circumstances may be difficult. The Secretary stated that his holding was that such a factual situation should be reviewed pursuant to a dual motive analysis, and that the ALJ did not appropriately examine the case within the dual motive context. The Secretary noted that the Respondent will have an opportunity to show it would have discharged Complainant, even if he had not insisted on his right to speak first to the NRC, for other legitimate reasons.
The Secretary observed that his holding was not a direction to the ALJ to second guess the Respondent's management decisions. Rather, the ALJ was only to examine whether, absent the Complainant's expressed intent to contact the NRC, the Respondent ordinarily would have fired him for failing to reveal these concerns or for other reasons, as it would any other employee.
XI D 3 d Dual motive; Complainant's attitude inseparable from his protected activities
When the employer's adverse action against the employee is motivated by both prohibited and legitimate reasons, the dual motive doctrine applies. In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), the Complainant had insisted loudly that he been given more information about a radiation hazard to which he had been exposed. The purported reason for discharge -- the Complainant's attitude -- was inseparable from his protected activity of questioning the safety procedures. Thus, the Respondent did not sustain its burden of showing that it would have fired the Complainant even if he had not engaged in protected activities.