USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XI E -- EVIDENTIARY MATTERS

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

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

XI.E.1. Relationship of evidence to legal analysis

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

XI.E.2. Burden of proof; NLRB connection

Employee filed claim with Department of Labor, alleging that his job transfer was the result of deliberate discrimination by employer (TVA) against him due to his participation in the NRC inspection process. The Secretary awarded relief to employee. Both employee and TVA sought review of the Secretary's decision. The court held that the National Labor Relations Act, rather than Title VII, controlled the allocation of the burden of proof in the antidiscrimination provisions of the ERA. DeFord v. Secretary of Labor, 700 F.2d 281, 285 (6th Cir. 1983).

XI E 3 Circumstantial evidence of retaliatory motive

The Court of Appeals' review of the Secretary's order is controlled by the Administrative Procedure Act under which an agency decision will be set aside if it is unsupported by substantial evidence or is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. §§ 706(2)(A)-(E). In reviewing an agency's decision, the Court of Appeals considers the entire record before it, including the ALJ's recommendation and any evidence that is contrary to the agency's determination. While much deference is usually accorded to an agency's expertise and discretion when the agency adopts the findings of the ALJ, a slightly different rule applies when the administrative agency rejects the ALJ's findings. An agency departing from the findings of the ALJ must show that it gave attentive consideration to the ALJ's conclusions. Such consideration may be found if the agency decision reflects an awareness of the ALJ's findings and gives reasons for reaching a different conclusion with respect to those findings. [citations omitted]

In the case before the court, the court concluded that the ALJ's finding in regard to whether the Respondent knew that the Complainant was cooperating with the government was correct, and rejected the Secretary's conclusion that the Complainant's actions were too ambiguous and enigmatic to put the company on notice of his cooperation with the government. During a meeting with company officials, the Complainant had refused to comment about a statement from a contractor who related Complainant's statement to him about company fed heptachlor-contaminated chicken feed. When asked who advised him not to comment, the Complainant produced a business card of a government agent.

The court noted that the presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. It noted that the company was aware that operations at its plant were being investigated, and concluded that this information, coupled with the business card incident, supported the reasonable inference that the Complainant was cooperating with the government in its investigation. The court also found it significant that the Complainant was suspended just hours after meeting with company officers, and discharged eleven days later.

Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2).

WITNESSES; INTIMIDATION AS EVIDENCE OF HOSTILITY TOWARD PROTECTED ACTIVITY
[N/E Digest XI E 3]

In Seater v. Southern California Edison Co ., 95-ERA-13 (ARB Sept. 27, 1996), Complainant contended that Respondent demonstrated its hostility toward protected activity by basing its policy toward its employees appearing as witnesses in the case based on the content of their testimony. The Board, however, found that this contention was not supported by the record, which indicated that Respondent paid all employees that appeared at the hearing their regular salary, but limited reimbursement for expenses to only those employees appearing as witnesses for Respondent. The Board indicated, however, that its rejection of the contention should not be considered indicative that it does not consider intimidation of witnesses to be a serious matter.

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

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

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

LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; EVIDENCE OF DISCIPLINE OF OTHERS FOR SAME ACTIVITY IN PAST
[N/E Digest XI E 3]

In Hermanson v. orrison Knudsen Corp. , 94-CER-2 (ARB June 28, 1996), the Board indicated that evidence that Respondent had fired other employees in the past for the same failure to adhere to conduct and safety rules that Complainant was fired for, supported a finding that Respondent's decision to fire Complainant was for nondiscriminatory reasons.

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

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

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

The Board continued:

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

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

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

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

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

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

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

EVIDENCE; MOTIVE; CLOSE WORKING RELATIONSHIP BETWEEN SUBORDINATES WHO EXHIBITED ANIMUS AND SUPERVISOR WHO MADE ADVERSE EMPLOYMENT DECISION
[N/E Digest XI E 3]

The ALJ did not err in considering evidence of hostility by several subordinates regarding the Complainant, even though they did not have the responsibility for consideration of the Complainant's promotion, where there was a close working relationship between those subordinates and the decisionmaker, and there was evidence of a pattern of hostility against the Complainant. Zinn v. University of Missouri , 93- ERA-34 and 36, slip op. at 12 (Sec'y Jan. 18, 1996).

CIRCUMSTANTIAL EVIDENCE
[N/E Digest XI E 3]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary stated that [i]t is well established that, in employee protection cases, [t]he presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. " Ellis Fischel State Cancer Hospital v. Marshall , 629 F.2d 563, 566 (8th Cir. 1980), quoted in ackowiak v. University Nuclear Systems, Inc ., 735 F.2d 1159, 1162 (9th Cir. 1984).

CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATORY INTENT
[N/E Digest XI E 3]

The complainant need not have any specific knowledge that the respondent's officials had an intent to discriminate against the complainant; ERA employee protection cases may be based on circumstantial evidence of discriminatory intent. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34, slip op. at 10 n. 7 (Sec'y Oct. 23, 1995).

XI E 3 Evidence; ultimate burden of proof not meet

In Kettl v. Gulf States Utilities Co., 92-ERA-33 (Sec'y May 31, 1995), the Complainant asserted that he was denied an opportunity to be enrolled in a training course in retaliation for his communication with the NRC.

The Complainant failed to carry his ultimate burden of proof where there was evidence that the Complainant had previously been selected for the training (which he did not successfully complete) after making a safety-related complaint to the NRC, another employee was selected for training who had made both internal and external complaints, there was prior tension between the Complainant and management concerning the Complainant's secret tape recording of a meeting, there was evidence that the Respondent had used its normal procedure for selecting employees for the training, the timing the selection decision indicated that it was made before the Complainant's most recent contact with the NRC, and the Respondent presented credible evidence why the Complainant was bypassed for the training.

XI E 3 Evidence of retaliatory motive; relevance of passing over of opportunities to retaliate

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Secretary indicated that it was relevant in regard to retaliatory motive that the Respondent passed over opportunities to terminate the Complainant's employment (such as a merger of two units when it "displaced" the Complainant's position but retained the Complainant in an unbudgeted position). Such evidenced that the Complainant was not considered a problem employee before his being fired for running an unauthorized business at work.

XI E 3 Respondent's clear written policy relevant in regard to retaliatory motive

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Secretary took into consideration in regard to retaliatory motive that the Respondent had a clear written policy that its computers could only be used for nonbusiness purposes after regular business hours and only for non-profit-making situations. In Collins, the Complainant admitted using his computer for a private business.

XI E 3 Failure to follow established channels and unreasonable manner of voicing concerns are relevant to respondent's motive

An employee's failure to follow established channels for voicing concerns and an unreasonable manner of complaining are relevant to the respondent's motivation and may remove statutory protection. Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995).

XI E 3 and 4 Motive evidence; rarity of "smoking gun"

See Marchese v. Goldsmith, 1994 U.S. Dist. LEXIS 7940 (E.D. Pa. 1994), aff'd without op., 1995 U.S. App. LEXIS 2694 (3d Cir. 1995) (order denying motion for new trial in First Amendment case; related Part 24 action 92-WPC-5), in which the court noted that proof of an illegal motive often requires inference from circumstance and witness credibility -- rarely is there "smoking gun" evidence of retaliation, citing Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 48 (3d Cir. 1989) (Title VII).

XI.E.3. Criticism of manner of presentation of safety concern

In Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994), the Secretary indicated that if a supervisor tells an employee that it was improper to go to the NRC with a problem because the company would have resolved it, that statement constitutes evidence of a retaliatory motive. In Mandreger , the ALJ had concluded that such statements were "legitimate statements of the employer's view of how employees should more properly present safety concerns. Such comments in the context of this case were not wrongful acts of harassment."

XI.E.3. Circumstantial evidence

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

XI.E.3. Circumstantial evidence

XI.E.3. Criticism of manner of presentation of safety concern

XI.E.3. Use of circumstantial evidence

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

XI E 4 Initial false reason for job action does not establish that the action was retaliatory

Evidence that the Respondent initially gave a false reason for its decision to take adverse employment action does not necessarily establish that the action was retaliatory. Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Mar. 24, 1995) (citing St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2756 (1993)). In Cowan , a rehiring situation, there was credible testimony that the Complainant was simply a bad employee and the worst electrician in his crew; that although it was clear that the Complainant had a reputation as a troublemaker or complainer that ran to Labor Department, that reputation had nothing to do with his performance rating; that there was a performance benchmark for rehiring established prior to its application to Complainant; the persons who decided not to rehire had personal knowledge of Complainant's poor performance.

[Nuclear & Environmental Digest XI E 4]
CREDIBILITY; BELIEF OF EMPLOYER IN REASON CITED

In determining whether an employer's explanation is worthy of credence, the fact finder must determine whether the employer actually believed and relied on the reasons cited -- not whether such bases are factually sound. Jarvis v. Battelle Pacific NW Laboratory ,1997-ERA-15 @ n.10 (ARB Aug. 27, 1998).

XI E 4 Shifting explanations may be evidence of pretext

An employer's shifting explanations may be considered evidence of pretext. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995), citing Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995).

XI.E.4. Credibility determinations

In Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992), the Secretary noted that the ALJ had fully explained why the complainant's version of the facts was more credible than the version proffered by the respondent's witnesses. In particular, the Secretary noted the ALJ's observation that there was not documented prior history of personnel problems with the complainant, but a very close time sequence between the protected activity and the retaliation.

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

XI.E.4. Complainant's case based on assumptions and lack of real evidence

In Colonello v. Dick Corp., 80-ERA-2 (ALJ Aug. 1, 1980), adopted (Sec'y Oct. 23, 1980), the ALJ credited the testimony of Respondent's superintendent that Complainant was laid off because of lack of work and a record of absenteeism. The ALJ found that Complainant had based his case on assumptions, and lacked any real proof that he had been laid off because of safety complaints.

XI.E.5. Use of statistic evidence to infer discrimination

In Bartlik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y Apr. 7, 1993), slip op. at 14, the Secretary held that, unlike an Executive Order No. 11,246 disparate impact case, discrimination in a ERA whistleblower case could not be inferred from statistics. In Bartlik, the ALJ had inferred discrimination based on a finding that the Respondent's regular practice was to arrange for "staff augmentee" engineers (such as the Complainant) to be hired by certain "managed task" contractors -- the implication being that the Complainant would have been contracted for to do this work in the absence of discrimination. In part, the ALJ had relied on evidence that 80% of the Respondent's engineers were "rolled over" to managed task contractors after the Complainant had left employment.

XI E 6 Importance of prima facie case analysis after case has been tried

In Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), the court noted that under the circumstances of the appeal "once an employment discrimination case has been tried, . . . the only truly relevant question is whether the plaintiff has met his ultimate burden of proving to the trier of fact that he was the victim of intentional discrimination." Slip op. at 2-3. See also n.2, in which the court indicates that given the ultimate determination that the Complainant was discharged for proper reasons, whether a prima facie case was established is not particularly important.

[Nuclear and Environmental Whistleblower Digest XI E 6]
COMPLAINANT'S BURDEN OF PROOF BY THE PREPONDERANCE OF THE EVIDENCE; ALJ ERRS IN RESOLVING DOUBTS IN FAVOR OF THE COMPLAINANT

In Hall v. United States Army Dugway Proving Ground , ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ALJ erred when he resolved all doubts in favor of the Complainant. The ARB reiterated that "the preponderance of the evidence standard requires that the employee's evidence persuades the ALJ that his version of events is more likely true than the employer's version. Evidence meets the 'preponderance of the evidence' standard when it is more likely than not that a certain proposition is true. Masek v. The Cadle Co. , ARB No. 97-069, ALJ No. 95-WPC-1, slip op. at 7 (ARB Apr. 28, 2000)." Slip op. at 27. The Board stated that "[i]f the ALJ is doubtful about whether to believe the employee's evidence, he must resolve the doubt against the employee, not against the employer." Slip op. at 27 (citation omitted).

COMPLAINANT'S BURDEN; NOT HIGHER WHEN RESPONDENT WAS ENGAGED IN REDUCTION-IN-FORCE
[N/E Digest XI E 6]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary rejected the Respondent's position that age discrimination decisions of the Sixth Circuit subject a complainant to a higher standard of proof when challenging a termination that occurs in the course of a reduction in force. See LaGrant v. Gulf & Western Mfg. Co. , 748 F.2d 1087 (6th Cir. 1984) (ADEA) and its progeny. The Secretary noted that the Sixth Circuit had clearly indicated that the McDonnell Douglas test must be applied ad hoc in each case, that the Complainant was not challenging a termination but a nonselection for employment, and that reliance on the line of ADEA cases was ill founded because age discrimination is rarely based on the sort of animus motivating other types of discrimination, citing EEOC v. Wyoming , 460 U.S. 226, 231 (1983).

XI E 6 "Whistleblower status" does not lessen burden of proof for Complainant

erely because a Complainant prevails on an earlier ERA complaint does not lessen his burden in a subsequent complaint based on "whistleblower status." The Secretary noted that "[t]he ERA does not prohibit an employer from taking adverse action against a whistleblower where ... that action is not based on the protected activity. Lockert v. United States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989)." Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y ar. 24, 1995).

XI E 6 Finding of pretext does not compel judgment for complainant; however, a finding for complainant does not require additional evidence

In Bechtel Construction Co. v. Secretary of Labor, No. 94-4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44), the court found that substantial evidence supported the Secretary's finding that the Respondent's articulated reason for laying off the Complainant was pretext. The Secretary also found that the Complainant had satisfied the burden of persuasion in establishing that the real reason for his being laid off was his having engaged in protected activity. The court noted that under St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), the rejection of the defendant's proffered reason for taking the adverse action does not compel judgment for the defendant. Nonetheless, the St. ary's Honor Center decision includes the following:

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, "no additional proof of discrimination is required...." Id. at , 113 S. Ct. at 2749 (footnote omitted) (quoting Hicks v. St. Mary's Honor Center, 970 F.2d 487, 493 (8th Cir.1992)).

The court found that the Secretary's decision was consistent with this aspect of St. Mary's Honor Center.

XI.E.6. Preponderance of evidence standard

In a whistleblower case the burden is on the complainant to prove by a preponderance of the evidence that retaliation for protected activity was a motivating factor in any adverse action. Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y July 26, 1988), slip op. at 2.

XI.E.7. Protection not dependent on proving an actual violation

Under the employee protection provision of the CAA, protection is not dependent on actually proving a violation.

Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992) (citing Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992)).

EVIDENCE; RELEVANCY OF TECHNICAL MERIT OF COMPLAINANT'S SAFETY CONCERN; LIMITATIONS ON ADMISSION OF RELEVANT AND PROBATIVE EVIDENCE
[N/E Digest VII D 2; X G; XI E 7]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), Complainant argued that the ALJ committed error in the exclusion of evidence, on relevancy grounds, proffered regarding the technical merit of Complainant's safety concerns. The Board agreed with Complainant that such evidence was relevant in regard to Respondent's motive -- the more credence given to Complainant's theory within Respondent's facility and elsewhere in the nuclear industry, the more likely it is that Respondent's management believed Complainant's theory would cause tension and would have wanted to cause Complainant's prompt departure. The Board ruled that with regard to the merits of Complainant's view of the technical issues, "it is adequate, for purposes of providing evidence relevant to the issue of retaliatory intent, to establish that others having expertise in this technological area found [Complainant's] view to have merit. The question of who is actually correct regarding the competing views about [the technological issue] is not germane to the retaliatory intent issue. The ALJ may therefore find it appropriate to exclude from consideration 'unduly repetitious' evidence concerning the technical merits of [Complainant's] view on [the technological issue] in conducting the proceeding on remand, pursuant to 29 C.F.R. § 24.5(e)(1) and Section 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d)." Slip op. at 6 (citations omitted).

The ALJ had expressed concern about unduly burdening the record. In a footnote, the Board held that 29 C.F.R. § 24.5(e)(1) is controlling over the OALJ Rules of Practice and Procedure rule of evidence at 29 C.F.R. § 18.403 in regard to the exclusion of relevant evidence. Section 18.403 would permit exclusion of relevant evidence in certain circumstances including "undue delay, waste of time, or needless presentation of cumulative evidence." Section 24.5(e)(1), however, does not allow for exclusion of probative evidence unless it is "unduly repetitious". The Board noted that this section "is consistent with the nature of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear to be of little probative value until the evidence is considered as a whole...", and "is also in accord with Section 7(c) of the APA, 5 U.S.C. § 556(d)." Slip op. at 6 n.8.

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

The Board continued:

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

XI E 7 Reasonableness of belief that issue implicated safety

In Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995), the Complainant expressed concerns that a vice- president for nuclear operations would not be sufficiently under the control of the power company's president. The Secretary held that the Complainant's internal complaint -- whether the Respondent's president was actually in control of Respondent's nuclear power plants as prescribed by the NRC license -- implicated the safe operation of the plants, and was a reasonable enough belief that his employer was violating the ERA to form the basis for a retaliation claim irrespective of the correctness of that belief.

XI E 7 Complainant only needs reasonable belief that environmental law is being violated; nonetheless, proof of no violation may be relevant to motive

In Rivers v. Midas Muffler Center, 94-CAA-5 (Sec'y Aug. 4, 1995), there was evidence that shortly before his discharge, the Complainant had damaged a vehicle, had a confrontation with managers about not clocking out for lunch, and had been asked to make a choice between his employment for the Respondent and another employer. The general manager admitted that he had discussed the lack of a catalytic converter on a vehicle the Complainant had been asked to work on, but denied that the work was illegal. The general manager produced, post hearing, a state environmental agency fact sheet supporting the contention that the repair was legal.

The Secretary noted that even if the repair was legal, the Complainant only needed a reasonable belief that his employer was violating the law to present a cognizable whistleblower complainant. Nonetheless, proof that the employer was not violating the law does tend to demonstrate that the employer did not seize upon poor performance as a pretext for retaliation.

XI.E.8. Protection not dependent on violation comprising predominant subject of complaint

Under the employee protection provision of the CAA, protection is not dependent on the alleged violation comprising the only or even the predominant subject of the complaint.

Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992) (citing Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992)).

XI.E.9. Evidence of past discrimination relevant, even though not independently actionable

Where Complainant alleged that he was bypassed and/or denied
advancement opportunities in retaliation for bringing safety and quality concerns to Respondent and/or the NRC, all of his com- plaints for retaliation that allegedly occurred prior to thirty days before the filing of his complaint were time barred since each instance was a consummated immediate violation rather than a continuing violation. The ALJ noted, however, that past non- selection or withdrawals from management training programs is relevant evidence to show past behavior of both the company and Complainant. Kettl v. Gulf States Utilities Co., 92-ERA-16 (ALJ Dec. 30, 1992).

XI.E.9. Reason for discharge not raised by respondent not probative

In Pillow v. Bechtel Construction, Inc., 87- ERA-35 (Sec'y July 19, 1993), the ALJ erred in finding that given Complainant's "altercations" with a supervisor, Respondent established that it would have laid off Complainant even in the absence of his protected activity, where there was no testimony that abusive or violent behavior toward that supervisor was ground for discharge. Given that it was not mentioned by Respondent as a reason for choosing Complainant for lay off, it simply was not probative evidence.

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

The Board continued:

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

XI E 11 Different treatment not element of whistleblower complaint

A complainant need not show that he or she was treated differently from other similarly situated employees to establish a prima facie case of retaliation. Inclusion of such a requirement among the elements of a claim would take no account of the possibility that more than one person might be exposed to the same type of discrimination. Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34 (Sec'y Aug. 28, 1995).

[N/E Digest XI E 11]
DISPARATE TREATMENT; PROOF OF SUCH TREATMENT NOT A NECESSARY ELEMENT OF WHISTLEBLOWER CASE, BUT MAY BE RELEVANT TO MOTIVE

In Acord v. Alyeska Pipeline Service Co. , 95-TSC-4 (ARB June 30, 1997), the Board considered in regard to the issue of retaliatory intent the lack of proof that Complainant was treated differently from other employees during a lay off. The Board noted that proof of disparate treatment is not a necessary element of proof in a whistleblower case, but that the lack of such evidence supported the ALJ's conclusion that Complainant's lay off was not retaliatory.

See also Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3, slip op. at 12 (ARB May 28, 1997) (considering lack of disparate treatment in evaluating lawfulness of discharge).

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

The Board continued:

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

EVIDENCE; MOTIVE; SHOWING THAT OTHERS WHO OPPOSED RESPONDENT'S ADMINISTRATIVE POLICIES SUFFERED NO ADVERSE CONSEQUENCES
[N/E Digest XI E 11]

In Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary noted the Respondent's evidence that other staff had opposed administrative policies and had taken leading roles in doing so, but had suffered no adverse consequences as a result. The Secretary, however, found that this evidence did not undermine the otherwise well-supported conclusion that the Complainant was demoted, at least in part, based on a retaliatory motive. Slip op. at 26-27.

EVIDENCE; EVENTS OCCURRING SUBSEQUENT TO ADVERSE ACTION; WITNESS INTIMIDATION
[N/E Digest XI E 12]

Events occurring subsequent to a complainant's termination of employment may be pertinent; they could provide support for a finding that retaliatory animus contributed to the decision to take the adverse action. Misconduct in the presentation of a respondent's case could both be a possible violation of 18 U.S.C. § 1505, and give rise to the discrediting of testimony or documentary evidence. Remusat v. Bartlett Nuclear, Inc. , 94-ERA-36 (Sec'y Feb. 26, 1996) (Secretary's holding, however, was that the Complainant's evidence was insufficient to establish retaliatory intent or witness intimidation).

EVIDENCE; EFFECT OF COMPLAINANT'S TERMINATION ON WORKPLACE
[N/E Digest XI E 12]

In Seater v. Southern California Edison Co . , 95-ERA-13 (ARB Sept. 27, 1996), the Board held that the ALJ erred in limiting, on relevancy grounds, the parties' presentation of evidence in regard to Complainant's argument that the laboratory in he worked in as a contractor and related training program suffered as a result of Complainant's termination from the laboratory. The Board held that "[i]n the instant case, ...evidence of incidents occurring or conditions developing in the ... laboratory and training program as a result of [Complainant's] accelerated departure may provide valuable indicia of the supervisory mindset at the pertinent time." The Board also held that the ALJ erred in excluding a document pertaining to the qualifications of laboratory personnel.

EVIDENCE; SETTLEMENT OFFERS AS EVIDENCE OF INTENT
[N/E Digest XI E 12]

Where the Complainant attempted to establish retaliatory intent by testimony that the Respondent had telephoned him several times after the filing of the complainant offering re-employment in exchange for a written statement admitting "guilt" in the matter, the Secretary noted that evidence of offers to settle a complaint are not admissible for the purpose of establishing liability under 29 C.F.R. § 18.408. Remusat v. Bartlett Nuclear, Inc. , 94-ERA-36 (Sec'y Feb. 26, 1996) (noting in a " but see " citation, however, 29 C.F.R. § 24.5(e)(1)).

PRIMA FACIE CASE; MAY BE BASED ON ALLEGATIONS FROM THE COMPLAINTS AND SUPPORTING PAPERS ALONE; NO FINDINGS OF FACT
[N/E Digest XI E 13]

In Tyndall v. U.S. Environmental Protection Agency , 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Board reviewed two matters in which the ALJs had recommended summary dismissal of the complaints. The Board expressly made no findings of fact, but made affirmative findings that the Complainant had established a prima facie case.

CAUSATION; ADVERSE PERFORMANCE EVALUATION AND RETALIATORY OTIVE; ERROR TO BASE FINDING OF RETALIATION ON FINDING THAT SUPERVISORS WERE TOO EMOTIONALLY INVOLVED IN DISPUTE TO RENDER FAIR EVALUATION
[N/E Digest XI E 14]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), an ALJ concluded in regard to a performance evaluation given to the Complainant during an "emotionally charged" period resulting from related whistleblower litigation, that the supervisors who prepared the evaluation could not be impartial in supervising and rating the Complainant's job performance. Thus, the ALJ found that the performance evaluation was suspect, and that maintenance of that evaluation in the Complainant's personnel file was unfair and prejudicial.

The Board found that the ALJ erred in focusing on this concern -- that whether it was possible for the supervisors to have neutral or impartial feeling toward the Complainant was irrelevant. Rather, the relevant question is whether retaliatory animus in fact infected the performance evaluation; if not, there was no retaliation regardless of what the supervisors felt about the Complainant.

The Board stated that "[t]he most useful measure of whether a performance appraisal was given out of retaliatory motive is whether it is fair and accurate description of an employee's job performance." Slip op. at 33 (citations and footnote omitted) The Board noted that "[o]f course, the fact that an evaluation is not fair or accurate does not automatically mean that it was motivated by animus, but it would be evidence from which such animus appropriately could be inferred...." Slip op. at 33 n.26. The Board then reviewed the Complainant's testimony, the uncontroverted testimony of the supervisors, and the ALJ's finding, and concluded that the performance appraisal was fair and accurate and not motivated by retaliatory animus.

[Nuclear & Environmental Digest XI E 14]
WORK REFUSAL

An employee's work refusal based on a reasonable good faith belief that working conditions are unsafe is protected activity under the ERA employee protection provision; however, a refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and, if found safe, adequately explained to the employee. See Pensyl v. Catalytic, Inc. , 1983-ERA-2, Slip op. at 6-7 (Sec'y Jan. 13, 1984).

In Eltzroth v. Amersham Medi-Physics, Inc. , 1997-ERA-31 (ARB Apr. 15, 1999), Complainant was hired as a Iodine I-125 Seeds Inspector a position which requires the visual and physical inspection of radioactive pellets; while being interviewed for the job, Complainant had been informed that the job entailed some radiation exposure. During training, Complainant became concerned that the protective gloves used provided little or no protection from radiation. A supervisor attempted to assuage Complainant's apprehension, but Complainant was not convinced, and the next day a meeting was arranged with the radiation safety officer who also explained that the exposure was lower than regulatory limits set by the government. When the supervisor arrived later in the day, Complainant was continuing to refuse to work with the I-125 seeds, and the supervisor asked whether Complainant had decided whether he would perform the assigned job duties. Complainant responded that he would not work unless arrangements were made "to reduce his exposure to 0." The supervisor responded that Complainant's position was unreasonable, and again asked if Complainant would perform the job; Complainant replied that he wanted to think about it overnight. After consulting with other management officials, the supervisor informed Complainant that he was being terminated from employment. A subsequent investigation by the Illinois Department of Nuclear Safety revealed no employee radiation exposure in excess of regulatory and administrative limits.

The ARB found that Complainant's initial refusal to work was protected activity; however, the refusal lost that protection because (1) Respondent made significant efforts to investigate and to explain the safety of the work area to Complainant, which was sufficient to fulfill Respondent's duty to respond to Complainant's good faith work refusal, and (2) Complainant's demands for a "zero exposure" environment did not have a reasonable or good faith basis and therefore did not constitute protected activity.

One member of the ARB dissented, concluding that Complainant should not be held to have lost protected status. First, the dissent found that there was not convincing evidence that Complainant had demanded "zero exposure," and that even if he had, in context it "was little more than an after-the-fact expression of frustration resulting from his inability to get straight answers from his employer to legitimate and straight-forward safety concerns that had been raised in good faith." Second, the dissent found (as did the ALJ) that the record established that Respondent did not adequately investigate and explain the safety of Complainant's work area; the dissent found that the Secretarial decisions interpreting Pensyl required more of Respondent in investigating Complainant's concerns, and explaining the safety of the work area.

[ Editor's note : Both the majority and dissent found support in the ALJ's recommended decision. Eltzroth v. Amersham edi-Physics, Inc., 97-ERA-31 (ALJ Oct. 2, 1997). Perhaps this is because the ALJ's recommended decision is based on slightly different reasoning from either the ARB's majority or dissent -- essentially, that Complainant was discharged for refusing to do the job he was hired to do and that there was no evidence of discriminatory animus. Although the ALJ found earlier in the recommended decision that Respondent had given an inadequate explanation to Complainant's questions partly because of an inadequate investigation, he also found that Respondent had expressed appropriate concern, and made attempts to directly addresses those concerns and assuage his fears. The lesson may be that retaliatory animus by Respondent is not required in a work refusal case. Although the ARB's majority and dissent viewed the evidence differently, they both carry the analytical underpinning that, in a work refusal case, the reasonableness of Complainant's safety complaint must be undermined in order to remove Respondent's liability for an adverse employment action based on the work refusal. Thus, the ALJ's finding of lack of retaliatory animus does not even appear to be relevant under the Pensyl analysis. Respondent's good faith, but inadequate, investigation of, and explanations to, Complainant's questions do not permit it to escape liability. Compare Lockert v. United States Dept. of Labor , 867 F.2d 513 (9th Cir. 1989) (Section 5851 provides that an employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge).]

[Nuclear and Environmental Digest XI E 14]
SHIFTING EXPLANATION MAY INDICATE PRETEXT

A shifting explanation for the adverse action often is an indication that the asserted legitimate reasons are pretext. Fabricius v. Town of Braintree/Park Dept. , 1997-CAA-14 @ 4 n.10 (ARB Feb. 9, 1999).

[N/E Digest XI E 14]
NONACTIONABLE COMPLAINTS; RELEVANCE OF EVIDENCE CONCERNING OTIVE

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that some of Complainant's concerns were not protected by environmental whistleblower provisions ( e.g. , occupational, racial, and other nonenvironmental concerns about respirators, physical danger to children posed by empty drums, and inclusion of an individual on a certain team). Nonetheless, the ARB noted that it considered whether the evidence relating to those allegations showed any hostility toward protected activity bearing on the question of Respondent's motivation. The Board noted also that it considered earlier personnel actions, even though they were discrete incidents that occurred outside the limitations period, because they formed in part a basis for Complainant's termination from employment, and shed light on the true character of matters occurring within the limitations period.

[N/E Digest XI E 14]
MOTIVATION; RESPONDENT'S ACTIONS INDICATE NO REASON TO FEAR EXPOSURE OF WRONGDOING

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), there was evidence that Respondent had started a project to remove underground storage tanks and replace them with above ground storage tanks before Complainant was hired, and that Respondent had hired an outside engineering firm to conduct tank integrity testing and soil contamination assessments and to issue reports and plans on how to proceed under applicable regulations and in consultation with state officials. Complainant questioned supervisors about the handling of certain allegedly contaminated soil removed at same time that the first tank was removed. Complainant, however, conceded that the tank was removed under the supervision of consulting engineers with no evidence to indicate that the engineers did not follow proper procedures for testing and handling the excavated soil. The supervisors knew that the soil was not contaminated.

The ARB found that these facts showed the absence of motive -- no reason to fear exposure of wrongdoing or otherwise feel the need to silence Complainant. The ARB cited with approval the ALJ's observation that "...proof that management considered the concerns invalid may be relevant to the question of motivation," especially in view of significant evidence that the supervisor was concerned about safety issues.

[N/E Digest XI E 14]
MOTIVATION; PROFESSIONAL DISAGREEMENT

The ARB held in Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), that "[a] mere difference of professional opinion, without more, does not prove retaliatory motives." Slip op. at 10.

[N/E Digest XI E 14]
DISPARATE TREATMENT; PROOF OF SUCH TREATMENT NOT A NECESSARY ELEMENT OF WHISTLEBLOWER CASE, BUT MAY BE RELEVANT TO MOTIVE

See also Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3, slip op. at 12 (ARB May 28, 1997) (considering lack of disparate treatment in evaluating lawfulness of discharge).

[N/E Digest XI E 14]
MOTIVE; TOLERANCE OF INSUBORDINATION RELEVANT

In Acord v. Alyeska Pipeline Service Co. , 95-TSC-4 (ARB June 30, 1997), the Board found that Complainant's theory would have required believing an elaborate and expensive charade was established to cover up a plot to discharge Complainant. The Board then noted that if Respondents had sought a reason to fire Complainant to cover up retaliatory intent, they could have used an incident in which Complainant exhibited insubordination by failing to show up for a meeting to discuss gaps in his paperwork. The Board found that Respondent's toleration of this incident "further negates any inference that their later actions in suspending [Complainant] and discharging him were motivated by retaliation." Slip op. at 10-11 (footnote and citations omitted).

EVIDENCE; LINE OF QUESTIONING ABOUT SUPERVISOR'S "BRAIN CHEMISTRY"
[N/E Digest XI E 14]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Board held that the ALJ properly terminated the Complainant's attempt to pursue a line of questioning about his supervisors' "brain chemistry" in regard to Complainant's performance evaluation. The Board noted that the best test of whether the supervisors' testimony that they evaluated the Complainant impartially was credible was the performance evaluation itself, which was both accurate and fair. Slip op. at 30-31 n. 24.

[Editor's note: But see Timmons v. Mattingly Testing Services , 95-ERA-40, slip op. at 14 n.9 (ARB June 21, 1996) (evidence concerning actions taken by Respondent in response to NRC investigation prior to termination of Complainant's employment should be admitted into evidence because it is relevant to mindset of Respondent's deciding officials]

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

The Board continued:

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