USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XIII -- ADVERSE ACTION

In Vander Boegh v. EnergySolutions, Inc. , 12-cv-5643 (6th Cir. Aug. 14, 2013) (2013 WL 4105648) (unpublished) (case below 2006-ERA-26), the Plaintiff was a landfill manager who engaged in a range of protected activity while working for a subcontractor to handle waste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

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

[Nuclear and Environmental Digest XIII A]
ADVERSE ACTION; ARB FINDS THAT THE BURLINGTON NORTHERN "MATERIALLY ADVERSE" STANDARD APPLIES TO THE STAA AND ALL OF THE EMPLOYMENT PROTECTION STATUTES ADJUDICATED BY THE DEPARTMENT OF LABOR

In Melton v. Yellow Transportation, Inc. , ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB addressed the Complainant's request on appeal to abandon the "tangible employment consequence" test, and to adopt instead the deterrence standard of Burlington Northern & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006). In Melton , the Complainant had been issued a warning letter in which the Respondent admonished the Complainant not to use fatigue as a subterfuge to avoid work. Both the Respondent and union witnesses testified that a single warning letter was corrective action, and although it was a pre-condition to most discipline, it was not itself discipline. The letter had no effect on hours, work assignments, pay, opportunities for advancement, or retirement benefits. All members of the Board agreed that under ARB precedent, such a warning letter would not be considered adverse employment action. The panel, however, spilt on the issue of whether the Burlington Northern "materially adverse" standard should now apply to an STAA whistleblower case (as well as all of the other anti-retaliation laws adjudicated before the DOL). A two-member majority found that it does. The majority wrote:

Burlington Northern held that for the employer action to be deemed "materially adverse," it must be such that it "could well dissuade a reasonable worker from making or supporting a charge of discrimination." For purposes of the retaliation statutes that the Labor Department adjudicates, the test is whether the employer action could dissuade a reasonable worker from engaging in protected activity. According to the Court, a "reasonable worker" is a "reasonable person in the plaintiff's position."

USDOL/OALJ Reporter at 19-20 (footnotes omitted). The majority stated that "the purpose of the employee protections that the Labor Department administers is to encourage employees to freely report noncompliance with safety, environmental, or securities regulations and thus protect the public. Therefore, we think that testing the employer's action by whether it would deter a similarly situated person from reporting a safety or environmental or securities concern effectively promotes the purpose of the anti-retaliation statutes." Id. at 20. Moreover, it stated that both ARB and federal case law demonstrated that the terms "tangible consequences" and "materially adverse" are "used interchangeably to describe the level of severity an employer's action must reach before it is actionable adverse employment action." Id . The majority summarized:

The Board has consistently recognized that not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. The employee protections that the Labor Department administers are not "general civility codes," nor do they make ordinary tribulations of the workplace actionable. Actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions, or privileges of employment. Therefore, the fact that the Burlington Northern test is phrased in terms of "materially adverse" rather than "tangible consequence," or "significant change," or "materially disadvantaged," or the like, is of no consequence. Applying this test would not deviate from past precedent. Like the Burlington Northern Court, our task has always been, and will continue to be, to separate harmful employer action from petty, minor workplace tribulations.

Id. at 23 (footnotes omitted). Applying the standard, the majority held that the warning letter in the instant case "was not materially adverse because the record demonstrates that it did not affect his pay, terms, or privileges of employment, did not lead to discipline, and was removed from his personnel file without consequences. Therefore, under the particular facts and circumstances presented here, the warning letter at issue would not dissuade a reasonable employee from refusing to drive because of fatigue." Id. at 24.

[Nuclear and Environmental Digest XIII A]
ADVERSE EMPLOYMENT ACTION; TO BE ACTIONABLE, THE RESPONDENT'S ACTIONS MUST HAVE BEEN "MATERIALLY ADVERSE," I.E. , HARMFUL TO THE POINT THAT THEY COULD HAVE DISSUADED A REASONABLE WORKER FROM ENGAGING IN PROTECTED ACTIVITY

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB wrote: "Not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. To succeed, Overall must prove by a preponderance of the evidence that TVA took a 'tangible employment action' that resulted in a significant change his employment status. This means that Overall must prove that TVA's action was 'materially adverse,' that is, TVA's actions must have been harmful to the point that they could well have dissuaded a reasonable worker from engaging in protected activity." USDOL/OALJ Reporter at 10-11 (footnotes omitted).

In Overall , the Complainant had been reinstated as the result of an earlier ERA whistleblower complaint. When reinstated, he was given his former job title, schedule and grade, with duties involving the same system that he previously worked on. The Complainant, however, argued that the Respondent did not give him meaningful work comparable to his prior work, and was prevented from work on any open "Problem Evaluation Reports." The ARB, however, affirmed the ALJ's findings that the Complainant had been reinstated to his former position, and that during the 12 days when he was actually on duty during the reinstatement, he was only assigned work appropriate to his position and level of training. The ARB found that the work assigned may have been mundane, but not materially adverse. The Complainant also contended that he had been excluded from meetings and conversations about the system to which he had been assigned. The ARB, however, found that the record supported a finding that he had not been excluded from conversations and meetings that were relevant to his responsibilities as a new member of the operational systems team. The Complainant was not immediately added to e-mail distribution lists; however, the ARB agreed with the ALJ that that the delay was not unreasonable. Finally, the ARB found that an isolated incident when a manager reported a concern that the Complainant was inappropriately planning to attend a rally at a nuclear power plant while on administrative leave did not establish that the supervisor had been monitoring the Complainant's whereabouts. Moreover, the Respondent took no action based on this information, and the Complainant did not demonstrate that he had suffered a materially adverse action from the manager's actions.

[N/E Digest XIII A]
ADVERSE EMPLOYMENT ACTION; DISTINCTION BETWEEN ADVERSE AND DISCRIMINATORY ACTION

In Stone & Webster Engineering Corp. v. Herman , 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the ALJ had determined that Complainant's demotion was not an adverse action because the demotion, in the ALJ's eyes, was not discriminatory.

The Eleventh Circuit, however, held that "discriminatory" and "adverse" have distinct meanings. The court wrote that "[a]n 'adverse action' is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Thus, the court affirmed the Secretary's conclusion that Complainant's demotion was an adverse action.

[Nuclear and Environmental Whistleblower Digest XIII A]
ADVERSE EMPLOYMENT ACTION; MERELY TELLING WORKERS TO GO HOME IS NOT PROOF OF FIRING

In McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005), the ARB held that a supervisor's telling workers to "go home" if they would not do an assigned job was not proof that the workers were fired.

[Nuclear and Environmental Whistleblower Digest XIII A]
ADVERSE EMPLOYMENT ACTION; LACK OF AUTHORITY OF MANAGER TO FIRE

In McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005), the ARB held that even though an internal memo detailing remedial actions taken by a manager after two engineers had complained of being fired for objecting to a deficient work package referred to a "termination," other evidence of record established that the person who purportedly fired the engineers had no authority to do so. Thus, the manager's action did not constitute adverse action.

[Nuclear & Environmental Whistleblower Digest XIII A]

ADVERSE ACTION; TANGIBLE EFFECT OR CONSEQUENCES

In Martin v. Azko Nobel Chemicals, Inc. , ARB No. 02 031, ALJ No. 2001 CAA 16 (ARB July 31, 2003), the ALJ described an adverse action as "an unfavorable personnel action." The ARB stated that this description "does not fully express the need for the action to have a >tangible' effect or consequence in order to qualify as conduct prohibited under the [CAA]." Slip op. at n.3 (citations omitted).

[Nuclear & Environmental Whistleblower Digest XIII A]
ADVERSE ACTION; REQUIREMENT OF TANGIBLE EFFECTS

Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003):

Not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. ... To be actionable, an action must constitute a tangible employment action," for example "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 761 (1998). ... Obviously material adverse actions such as discharge, demotion or loss of benefits and compensation are actionable. ... Less obvious actions likewise are actionable, for example stripping an employee of job duties or altering the quality of an employee's duties, if they have tangible effects. ...

USDOL/OALJ Reporter at 20 (citations omitted). Compare Daniel v. TIMCO Aviation Services, Inc. , 2002 AIR 26 (ALJ June 11, 2003) (ALJ argues that "tangible consequences" should not be merely ones that impact on narrow pecuniary interests, but also ones likely to stifle protected activity).

[Nuclear & Environmental Whistleblower Digest XIII A]
ADVERSE ACTION; SECOND HAND HARASSMENT

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd on other grounds Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004). the ARB recognized Title VII authority concerning "second hand" harassment as applicable to ERA whistleblower cases. In the instant case, second hand harassment included comments or actions that were directed at another whistleblower but were witnessed by or recounted to a Complainant.

[Nuclear and Environmental Whistleblower Digest XIII A]
ADVERSE ACTION; NEGATIVE PERFORMANCE EVALUATION MUST IMPLICATE TANGIBLE JOB CONSEQUENCES TO BE ACTIONABLE

A negative performance evaluation, absent tangible job consequences, is not an adverse action. Ilgenfritz v. U.S. Coast Guard Academy , ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001).

[Nuclear & Environmental Digest XIII A]
ADVERSE EMPLOYMENT ACTION; REQUIREMENT OF TANGIBLE JOB CONSEQUENCE

In Shelton v. Oak Ridge National Laboratories , ARB No. 98-100, ALJ No. 1995-CAA-19 (ARB Mar. 30, 2001), the ALJ found that an "Oral Reminder" directing Complainant to refrain from using abusive and profane language constituted an adverse employment action, relying on Helmstetter v. Pacific Gas & Electric , 1986-SWD-2 (Sec'y Sept. 9, 1992). Respondent urged the ARB to reconsider Helmstetter in light of recent Title VII caselaw to the effect that an act must have a tangible job consequence to be considered an adverse action. The ARB cited Oest v. Illinois Dep't of Corrections , 2001 WL 12111 (7th Cir. 2001), noting that the court in that case "specifically rejected the view that a reprimand can be considered adverse simply because each reprimand may bring an employee closer to termination." In the case sub judice the ALJ found that an Oral Reminder is the lowest step of formal discipline; it is memorialized in a memo that is placed in the employee's personnel file for six months; once removed, it cannot be considered in any future disciplinary action. The ARB held that it was persuaded that, "in the absence of any showing that some tangible job consequence flowed from it, the 'Oral Reminder' issued to Shelton is not an adverse action. To the extent that Helmstetter would require a different result, we depart from it."

[Nuclear & Environmental Digest XIII A and XIII B 15]
ADVERSE EMPLOYMENT; TENTH CIRCUIT CASE LAW

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), the ALJ found that "[t]he Tenth Circuit liberally defines the phrase 'adverse employment action' and 'takes a case-by-case approach to determining whether a given employment action is 'adverse.'' Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998)(employment action is not required to be materially detrimental)." The ALJ wrote:

In Jeffries , for example, verbal interrogation and reprimand were sufficient to constitute adverse employment actions even though said actions did not actually have an adverse impact on the terms and conditions of the employee's employment. Id. Other examples of adverse actions include "decisions that have demonstrable adverse impact on future employment opportunities or performances, demotions, [] unjustified evaluations or reports, transfer or reassignment of duties, [and] failure to promote." Fortner v. Kansas , 934 F. Supp. 1252, 1266-67 (internal citations omitted), aff'd sub nom. Fortner v. Rueger , 122 F.3d 40 (10th Cir. 1997). Nevertheless, it is not sufficient for a complainant to simply testify that he did not like the action or wished that the action had not occurred. Trimmer , 174 F.3d at 1103 (citing Greaser v. Missouri Dep't of Corrections , 145 F.3d 979, 984 (8th Cir. 1998). See also Fortner , 934 F. Supp. at 1266-67("[N]ot everything that makes an employee unhappy is an actionable adverse action." Speculative harm will not constitute adverse employment action. Id.

In Graf , the ALJ found that (1) denial of Complainant's request to take a block of "comp time" in exchange for overtime hours was not adverse employment action where he was treated like other employees with equal status; (2) threats of disciplinary action and attempts to solicit Complainant's compliance with Corrective Action Plans were adverse employment action; (3) the posting of cartoons on Respondent's bulletin boards were not adverse employment action where, although the cartoons displeased the Complainant, there was no evidence that they impaired Complainant's ability to perform his job or caused a less favorable performance rating; and, it was not established that the cartoons created a hostile work environment there being no evidence that management knew that co-workers were harassing Complainant it rather appearing to be an isolated incident.

[Nuclear & Environmental Digest XIII A]
ADVERSE EMPLOYMENT ACTION' SPECULATION INSUFFICIENT; COMPLAINANT MUST ESTABLISH ADVERSE CONSEQUENCES

In Trimmer v. U.S. Dept. of Labor , No. 97-9544 (10th Cir. Apr. 6, 1999) (case below 93-CAA-9 and 93-ERA-5), Complainant had gone through periods in which he was either on workers' compensation, returned to work under an "alternate placement" program, using sick leave and vacation, leave without pay, seeking work under the alternate placement program, or receiving disability retirement payments. After Complainant had not worked for over a year, Respondent determined that Complainant should be notified that unless he actively pursued alternate placement, he would be terminated from employment. Respondent, however, delayed sending the notice for several months because it feared that it would be viewed as retaliatory because Complainant had recently been quoted in a newspaper article critical of Respondent's safety procedures. Complainant agreed to the new alternate placement job search, and was medically discharged after the job search was unsuccessful.

On appeal to the 10th Circuit, Complainant contended that the ARB erred when it found that Respondent did not engage in an adverse employment decision when it postponed sending the notice. Complainant argued that the delay denied him the opportunity to be considered for jobs that were open for a portion of the period of delay, and caused him to conduct the search during a time when employment opportunities were limited because of a reduction in force.

The court held that "[r]ather than simply asserting that his employment opportunities would have been better had the alternate-placement search been conducted [immediately after the decision to issue the notice had been made], instead of the [period during the RIF], [Complainant] must prove that he suffered adverse consequences from the delay which he would not have suffered had the letter been sent [when the decision to issue the notice was made]." The court found dispositive of Complainant's claim uncontradicted evidence that the delay did not preclude nor hinder Complainant from requesting an alternate placement process or conducting his own job search; that Complainant knew about open positions through a friend and, in one case, through a notice, but declined to apply. The court distinguished decisions cited by Complainant on the ground that in those cases the employer had completely eliminated the complainants' employment opportunities.

Finally, the court found that even if it were to compare the two time periods, Complainant had produced no evidence to show that his employability would have been better during the earlier time period; that other evidence showed that the alternate employment process only worked about 10% of the time; that the delay actually benefitted Complainant by extending his disability status; that a claims manager for Complainant's private insurer reported that Complainant was not motivated to return to work; and Complainant had received special accommodation to conduct the alternate placement search from his home so as not to jeopardize the disability benefits.

XIII A Generally

[N/E Digest XIII A]
ADVERSE ACTION; DEFINITION

"An adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman , 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44).

[N/E Digest XIII A]
HOSTILE ACTS THAT DO NOT CAUSE ANY TANGIBLE JOB DETRIMENT

In Boudrie v. Commonwealth Edison Co ., 95-ERA-15 (ARB Apr. 24, 1997), Complainant urged the Board to find that employees are entitled to compensation for any discriminatory hostility exhibited by their employer regardless of whether the employee suffered any tangible job detriment. The Board declined to rule on this point of law because it found that none of the allegedly hostile acts were either adverse or retaliatory.

XIII B 1 Circulation of public document at facility not related to respondent

The circulation of a publicly available newspaper article at a power plant other than Respondent does not, in itself, constitute blacklisting or interference with Complainant's employment relationship in the absence of a showing of a connection with Respondent. See Bartik v. Tennessee Valley Authority, 88-ERA-15 (Sec'y July 16, 1993) (order denying motion for reconsideration).

[Nuclear and Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; COMPLAINANT'S SUBJECTIVE FEELING THAT HE HAD BEEN BLACKLISTED IS INSUFFICIENT TO PROVE ACTUAL BLACKLISTING

In Murphy v. Atlas Motor Coaches, Inc. , ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006), PDF | HTM the only evidence of blacklisting was the Complainant's "gut-feeling" based on being "kind of brushed off" when he applied for another position at another company and talked to a person who had also formerly worked for the Respondent. Citing caselaw to the effect that a complainant's subjective feelings are insufficient to establish actual blacklisting, the ARB held that the ALJ correctly concluded that the Complainant failed to establish blacklisting.

[Nuclear and Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; REQUIREMENT OF EVIDENCE THAT A SPECIFIC ACT OF BLACKLISTING OCCURRED

In Ingram v. Shelly & Sands, Inc. , ARB No. 04-090, ALJ No. 2002-ERA-27 (ARB Mar. 31, 2005), the ALJ had found that the Complainant had not established that she had been a victim of blacklisting because she had not provided evidence of specific acts of blacklisting. The ARB found that the Complainant's assertion on review that she "had not been able to obtain employment in road work" and that she and her "union Business Agents seem to agree that [she] was blackballed" was an unsupported allegation insufficient to compel the ARB to reject the ALJ's finding. See Pickett v. Tennessee Valley Authority , ARB Nos. 02-056, 02-059, ALJ No. 2001-CAA-18, slip op. at 8 (ARB Nov. 28, 2003).

[Nuclear & Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; COMPLAINANT'S BURDEN NOT ESTABLISHED BY EQUIVOCAL EVIDENCE

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

The ARB found that the investigator's statements during the visit had not been proved by a preponderance of the evidence to be blacklisting. For instance, the testimony on Complainant's allegation that the investigator had accused Complainant of malingering could have been interpreted as supporting an inference of malingering B or as a ploy to motivate the employer to provide full employment information about Complainant B or as gratuitous remarks. The testimony provided only equivocal evidence. Complainant alleged that the investigator ridiculed Complainant for living at home at an age of 36, but the ARB observed that such a comment is simply unrelated to employment qualifications.

[Nuclear & Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; DEFINITION

In Pickett v. Tennessee Valley Authority , ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003), the ARB described the definition of blacklisting. Observing that the regulation at 29 C.F.R. § 24.2(b) specifically mentions blacklisting as a violation of the employee protection provisions, the Board wrote:

    A blacklist is defined as a list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate. Leveille v. New York Air National Guar d, Case No. 94 TSC 3, slip op. at 18 19 (Sec'y Dec. 11, 1995); see Black's Law Dictionary 154 (5th ed. 1979). Y

    A blacklisting may also arise "out of any understanding by which the name or identity of a person is communicated between two or more employers in order to prevent the worker from engaging in employment." 48 Am. Jur. 2d, Labor and Labor Relations § 669 (2002). Blacklisting occurs when an individual or a group of individuals acting in concert disseminates damaging information that affirmatively prevents another person from finding employment. Barlow v. U.S. , 51 Fed.Cl. 380, 395 (2002) (citation omitted).

    Blacklisting assumes that an employer covertly follows a practice of discrimination. Black's Law Dictionary 163 (7th ed. 1999)Y.

    However, in Odom v. Anchor Lithkemko , Case No. 96 WPC 1, slip op. at 13 (ARB Oct. 10, 1997), the ARB emphasized that an employer is not prohibited from providing a negative reference simply because an employee has filed a whistleblower complaint. To be discriminatory, the communication must be motivated at least in part by the protected activity. . . .

    In addition, blacklisting requires an objective actionCthere must be evidence that a specific act of blacklisting occurred. See Howard v. Tennessee Valley Authority , Case No. 90 ERA 24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. U.S. Dept. of Labor , 959 F.2d 234 (6th Cir. 1992) (table)Y. Subjective feelings on the part of a complainant toward an employer's action are insufficient to establish that any actual blacklisting took place. See Bausemer v. Texas Utilities Electric , Case No. 91 ERA 20, slip op. at 8 (Sec'y Oct. 31, 1995) (an employer's letters to contractors requesting notice of any discrimination cases filed against them did not constitute blacklisting of complainant).

    Under Smith v. Tennessee Valley Authority , Case No. 90 ERA 12, slip op. at 4 (Sec'y Apr. 30, 1992), an allegation of blacklisting must include some form of detriment to the complainant. Thus, there must be some objectively manifest personnel or other injurious employment related action by the employer against the employee, proved directly or circumstantially, to support a claim of illegal action under the statute. McDaniel v. Mead Corp. , 622 F. Supp. 351, 358 (W.D. Va. 1985), aff'd , 818 F.2d 861 (4th Cir. 1987) (table).

Slip op. at 8 9.

[Nuclear & Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; STATEMENT OF RESPONDENT'S COUNSEL IN POST HEARING BRIEF

In Erickson v. U.S. Environmental Protection Agency , 2003 CAA 11 and 19, 2004 CAA 1 (ALJ Nov. 13, 2003), Complainant alleged, inter alia , that Respondent's counsel blacklisted her by referring to her in a post hearing brief as being insubordinate when none of Respondent's supervisors accused her of such misconduct. The ALJ, however, dismissed this complaint because of a lack of legal authority for finding that such action creates a cause of action. The ALJ observed that Supreme Court authority provides government counsel with "an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding." Slip op. at n.1, quoting Imbler v. Pachtman , 424 U.S. 409, 426 n.23 (1976).

[Nuclear & Environmental Whistleblower Digest XIII B 1]
BLACKLISTING; EMPLOYER'S SUPPLYING OF LETTER REQUIRED WHEN IT REJECTED A UNION EMPLOYMENT BID

In Johnsen v. Houston Nana, Inc. , ARB No. 00 064, ALJ No. 1999 TSC 4 (ARB Jan. 27, 2003), Respondent did not engage in blacklisting when it communicated to Complainant's union that Complainant was on a "no rehire" list, where Respondent was required to inform the union in writing of the reason for rejection of employment bids, and where Respondent did not mention or imply that the decision not to rehire was based on protected activity.

[N/E Digest XIII B 1]
BLACKLISTING; NEGATIVE EMPLOYMENT REFERENCES FOLLOWING FILING OF COMPLAINT NOT ACTIONABLE IF NOT MOTIVATED BY PROTECTED ACTIVITY

In Odom v. Anchor Lithkemko , 96-WPC-1 (ARB Oct. 10, 1997), the ARB found that Gaballa v. Atlantic Group, Inc., 94-ERA-9 (Sec'y Jan. 18, 1996), does not necessarily prohibit an employer from providing a negative reference once the employee has filed a retaliation claim. Rather, to be discriminatory, such a communication must be motivated at least in part by protected activity. The ARB noted that in Gaballa, unlike in the instant case, the employer explicitly mentioned the employee's protected complaint of retaliation.

[N/E Digest XIII B 1]
ADVERSE ACTION; NEGATIVE EMPLOYMENT REFERENCES; REQUIREMENT THAT COMPLAINANT ESTABLISH THAT A SUBSTANTIAL JOB DETRIMENT WOULD BE A PREDICTABLE AND NATURAL OUTCOME

In Webb v. Carolina Power & Light Co. , 93-ERA-42 (ARB Aug. 26, 1997), the ARB found that Respondent had not presented clear and convincing evidence that Complainant's former supervisor would have given a negative appraisal of Complainant to a friend of Complainant who still worked at the plant, even if the former supervisor did not suspect that Complainant had engaged in protected activities. Nonetheless, the ARB found that Complainant had not established an adverse employment action.

The ARB distinguished earlier decisions indicating that an ERA whistleblower violation is established if a negative reference is given to a reference checker hired by Complainant. See Leveille v. New York Air Natl. Guard , 94-TSC-3 and 4 (Sec'y Dec. 11, 1995); Gaballa v. The Atlantic Group, Inc. , 94-ERA-9 (Sec'y Jan. 18, 1996). The ARB found that the unique facts of the instant case did not establish that there was a substantial risk that the negative reference would be maintained in a record or would be given to outside organizations seeking information about Complainant. In the instant case, tComplainant's friend had asked if there was a problem with Complainant's performance and the former supervisor said Complainant was not as a strong a performer as others and that he not good in a group setting The ARB found that the prior cases were different because a substantial job detriment would have been a predictable and natural outcome of the respondent's conduct.

In another part of the decision discussing Complainant's claim that the reason he had not been hired by any employer in nuclear industry, despite numerous applications, must be blacklisting by Respondent, the ARB noted that Complainant presented no evidence that any other employer contacted Respondent for a reference or otherwise received negative information about Complainant from Respondent.

HOSTILE WORK ENVIRONMENT; BLACKLISTING; WELL-PLEADED FACTS TO WITHSTAND RULE 12(b)(6) MOTION
[N/E Digest XIII B 1 and XIII C]

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 Complainant alleged that the Respondent retaliated against him when (1) he was introduced as a panelist at a stakeholder's meeting in a stigmatizing fashion ("we all know him"); (2) "murmurs and groans" were generated by this introduction; and (3) the Secretary of Energy had a cold reaction to the Complainant at a meeting, which was allegedly provoked by blacklisting.

The Board found that the introduction was merely a statement of fact given the amount of publicity that Complainant's whistleblower cases had generated. The Board stated that "nothing which even arguably had an adverse impact on Varnadore's work environment can be read into this innocuous remark." The Board found the "murmurs and groans" allegation to be frivolous, the Complainant having failed to allege any facts from which it could be concluded that this contributed to a hostile work environment.

In regard to the Secretary of Labor's alleged remark, the Board stated that "it is not enough for [the Complainant] to allege that Secretary O'Leary had a negative reaction to him, and that negative reaction must have been caused by 'blacklisting communications' from [the Respondent.]" Rather, [the Complainant] must allege facts that show that [the Respondent] made blacklisting remarks to Secretary O'Leary which in turn contributed to a hostile work environment. In the absence of any alleged facts regarding this element of his claim, it must be dismissed pursuant to Rule 12(b)(6)." Slip op. at 66.

BLACKLISTING; POOR REFERENCE IS ACTIONABLE REGARDLESS OF IDENTITY OF RECIPIENT OF INFORMATION
[N/E Digest XIII B 1]

It is unlawful discrimination when providing information concerning a complainant's employment to an outside party to refer to the complainant's complaint about discrimination. Discriminatory referencing violates the ERA regardless of the recipient of the information. See Earwood v. Dart Container Corp. , 93-STA-16 (Sec'y Dec. 7, 1994). Gaballa v. The Atlantic Group, Inc. , 94-ERA-9 (Sec'y Jan. 18, 1996) (Complainant had hired a reference checking company).

BLACKLISTING; LACK OF ACTUAL INJURY DOES NOT SHIELD A RESPONDENT FROM LIABILITY
[N/E Digest XIII B 1]

The fact that a blacklisted complainant was not refused employment or did not suffer an actual employment injury does not shield a respondent from liability. Leveille v. New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995). In the context of the facts in Leveille , blacklisting was simply marking an employee for avoidance in employment because she engaged in protected activity; communication of an adverse recommendation is evidence of the decision to blacklist the employee. The Secretary stated that "[b]lacklisting is the quintessential discrimination, i.e. , distinguishing in the treatment of employees by marking them for avoidance." Although the conversation in which the Complainant's former supervisor made a negative employment recommendation was not a legitimate call from a prospective employer but from a employment reference checking service, the Secretary indicated that he would follow his finding in Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994) (STAA case), that "effective enforcement of the Act requires a prophylactic rule prohibiting improper references to an employee's protected activity whether or not the employee has suffered damages or loss of employment opportunities as a result."

OTIVE FOR BLACKLISTING; MAY BE INFERRED FROM VEILED REFERENCES EVEN IF PROTECTED ACTIVITY IS NOT MENTIONED
[N/E Digest XIII B 1]

In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995), a Complainant's former supervisor gave a negative employment reference to a reference checking company. The former supervisor did not mention any of the Complainant's protected activity, but referred to that Complainant's spousal relationship, her being a combative and argumentative employee and her otherwise poor interpersonal skills, as being reasons he would not hire her. The Secretary noted that the former supervisor commented that the interpersonal skills were only part of the problem, and declining to comment further, told the reference checker that "I think you know how to listen between the lines." The Secretary found that the references to other, unstated reasons for his opinions suggest illicit motivation, especially since this conversation followed by several months a letter from the Complainant's attorney admonishing the former supervisor not to denigrate the Complainant because she had engaged in protected activity.

BLACKLISTING; MUST BE EVIDENCE OF INTENTIONAL INTERFERENCE
[N/E Digest XIII B 1]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Complainant was unable to establish a claim of blacklisting where there was no evidence that any employee of the Respondent had intentionally interfered with any employment opportunity that the Complainant may have had available through a contractor that provided inspectors to the Respondent.

BLACKLISTING; REQUIREMENT OF ADVERSE ACTION
[N/E Digest XIII B 1]

Where the Respondent's executive vice-president sent letters to each of its contractors about discriminatory employment actions, and in a follow-up letter, requested that he be informed of any discrimination complaints brought against any contractor, but the Complainant was not named in the letters, and the correspondence and the context in which it arose revealed only a positive effort to guard against the harassment of employees, the Secretary rejected the Complainant's blacklisting complaint for lack of adverse action. Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995).

XIII B 1 BLACKLISTING; ABSENCE OF EVIDENCE OF IDENTITY OF CALLER OR THAT SUBSTANCE OF CONTACT INCLUDED ADVERSE STATEMENTS ABOUT THE COMPLAINANT

In Saporito v. Florida Power & Light Co. , 93-ERA-23 (Sec'y Sept. 7, 1995), the Complainant had previously prevailed in a whistleblower complaint against Arizona Public Service Company. There was evidence that an unidentified caller, who said he was from the Respondent Florida Power & Light Co., had telephoned Arizona Public Service Company's Vice President for Nuclear Operations concerning the Complainant.

The Complainant could not prevail on the instant claim of blacklisting against Florida Power & Light Co. where there was no evidence of the actual identity of the caller (i.e., there was insufficient evidence that the caller was an official or even an employee of the Respondent) or that the caller stated that the Complainant had been a whistleblower, mentioned why the Complainant left Florida Power, or stated or implied that Arizona Public Service should do anything to the Complainant.

XIII B 1 BLACKLISTING; VERBAL V. WRITTEN STATEMENTS

A verbal statement made to hiring personnel can constitute blacklisting; no document or written list is required. Webb v. Carolina Power & Light Co., 1993-ERA-42 (Sec'y July 14, 1995), citing Holden v. Gulf States Utilities, 92-ERA-44, slip op. at 3, 13 n.8. (Sec'y Apr. 14, 1995).

XIII B 1 BLACKLISTING; POOR RECOMMENDATION

A former supervisor's statement that he would not rehire a worker may be an instance of blacklisting. Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995), citing Beckett v. Prudential Ins. Co. of America, No. 94-CV-8305 (SAS), 1995 U.S. Dist. LEXIS 6513 (S.D. N.Y. May 15, 1995) ("Poor recommendations . . . may be discriminatory practices if done in direct retaliation for a former employee's opposition to an unlawful employment practice."); compare Smith v. Continental Ins. Corp. , 747 F.Supp. 275, 281 (D. N.J. 1990), aff'd, 941 F.2d 1203 (3d Cir. 1991) (rejecting claim of blacklisting where plaintiff admitted she was unaware of any negative verbal or written job references to prospective employers).

XIII B 1 Denied Access List is not a blacklist if there is no evidence of improper motive

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the Respondent had placed the Complainant on a "Denied Access List," which the Complainant contended was blacklisting in retaliation for protected activity. The Respondent contended that the list could not be considered a "blacklist" because that term contemplates a measure of malice and connotes unfairness. The Respondent pointed out that federal regulations require it to maintain access authorization lists as a safeguard against nuclear sabotage and other security risks. See 10 C.F.R. § 73.55(d)(7) (1994). The ALJ found that it was a blacklist (although ultimately concluding that the Complainant failed to show blacklisting prohibited by the ERA). The Secretary concluded, however, that "[w]ithout evidence of improper motivation, [the list] cannot constitute a blacklist within the meaning of the ERA.

XIII B 1 Blacklisting

In Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the Secretary cited Black's Law Dictionary 154 (5th ed. 1979) for the following definition of "blacklist":

Blacklist. A list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate; as where a trades-union "blacklists" workmen who refuse to conform to its rules, or where a list of insolvent or untrustworthy persons is published by a commercial agency or mercantile association.

XIII B 1 Blacklisting; requirement of actual injury

In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (ALJ Jan. 19, 1995), the ALJ concluded that in order to establish a valid claim of blacklisting, there must be an actual employment injury. The ALJ found no decisions of the Secretary directly on point, but did find support in the ALJ's decision in Howard v. Tennessee Valley Authority, 90-ERA-24 (ALJ Sept. 14, 1990), adopted on other grounds (Sec'y July 3, 1991). In Leveille , the Complainant had engaged a reference-checking service, which had contacted the Complainant's former supervisor, who gave her a poor reference. The Complainant, however, did not establish that she suffered any adverse consequences as a result.

[ Editor's note: The Secretary recently held in a STAA case that loss of an employment opportunity is not required for recovery in a blacklisting case. See Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), casenoted in the STAA Digest Update at IV.F. In Leveille, however, the ALJ also found that the reason given for the bad reference was not based on protected activity, which may be a distinguishing factor.]

XIII B 1 Blacklisting

The regulations implementing the ERA explicitly prohibit blacklisting, 29 C.F.R. § 24.2(b) (1990), and the Secretary has held that blacklisting, which is "insidious and invidious [and] cannot easily be discerned," is prohibited by the ERA. Egenrieder v. Metropolitan Edison Co./G.P.U., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 8.

"Blacklisting" is marking an individual "for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate." BLACK'S LAW DICTIONARY 154 (5th ed. 1979).

Doyle v. Hydro Nuclear Services, 89-ERA-22 (Sec'y ar. 30, 1994).
XIII B 1 Blacklisting

Doyle v. Hydro Nuclear Services, 89-ERA-22 (Sec'y ar. 30, 1994).

XIII B 1 "Blacklisting"; denied access list

While the term "blacklisting" may ordinarily be used to refer to a list of discharged employees which is circulated among multiple employers for the purpose of refusing them employment, see 48 Am. Jur. 2d Labor and Labor Relations § 21 (1979), the legal definition is not necessarily so limited.

In Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 9-10, the Secretary held that where the complainant alleged that up until and during the thirty day period prior to filing of his complaint, the respondent, in retaliation for the complainant's protected activity, maintained his name on a "denied access" list which prevented his future employment at the plant from which he had been formerly employed, the complainant has alleged an independent violation of blacklisting within the meaning of 29 C.F.R. § 24.2(b).

XIII B 1 Blacklisting

In Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992), the Secretary adopted the ALJ's recommendation that the respondent's motion for summary judgment be granted based on the complainant's failure to sufficiently allege adverse action by the respondent. In Smith, the respondent's General Counsel had prepared and disseminated a memorandum with an attached status report on ERA whistleblower cases brought by former and current employees. A local newspaper report referenced the memorandum and status report. The complainant alleged that the existence of the memorandum and status report constituted "blacklisting."

The Secretary found that the complainant had not demonstrated that the respondent used the memorandum and status report for any purpose other than the respondent's stated legitimate and nondiscriminatory business purposes: a communication between legal counsel and a newly appointed Senior Vice President of Nuclear Power to apprise him of the status of ERA activity, all of which was a matter of public record. The Secretary held that "[w]ithout further indications of specific adverse action, the existence of the memorandum and status report which contain no language or instructions detrimental to Complainant, is not sufficient to establish the requisite elements of a prima facie case."

[Editor's note: This case is similar to Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992)]

XIII B 1 Blacklisting (adverse action)

The existence of a memorandum and status report on whistleblower complaints from employer's General Counsel to employer's Vice President for Nuclear Power that contained no language or instructions detrimental to Complainant is not sufficient to establish the requisite elements of a prima facie case of blacklisting without further indications of specific adverse action. See generally Doyle v. Bartlett Nuclear Servs., 89-ERA- 18 (Sec'y May 22, 1990); Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), appeal docketed, No. 89-7863 (11th Cir. Nov. 28, 1989). Howard v. Tennessee Valley Auth., 90-ERA-24 (Sec'y July 3, 1991).

XIII B 1 Blacklisting

In Bryant v. Ebasco Services, Inc., 88-ERA-31 (Sec'y Apr. 21, 1994), in discovery concerning Complainant's second ERA complaint alleging retaliatory failure to rehire allegedly in violation of a settlement agreement on the first ERA complaint, Respondent determined that Complainant had misrepresented his educational qualifications when obtaining his job originally. The Secretary found that Respondent proffered legitimate reasons for not rehiring Complainant, that had not been shown to be pretext, and that under the dual motive analysis, Respondent showed that it would not have rehired Complainant, even in the absence of the protected activity.

Complainant's second ERA complaint also asserted blacklisting. Complainant made out a prima facie case of blacklisting, showing that Respondent was aware of his protected activity, that "bad paper" rumors had been circulated by Respondent's personnel, and that he was not able to obtain other employment in the nuclear industry in 1987 and 1988.

The Secretary found, however, that the blacklisting did not violate the ERA because Respondent presented credible testimony that the "bad paper" rumors referred to Complainant's lack of educational qualifications, and no blacklisting occurred prior to its discovery of the misrepresentation. Respondent also admitted that it did provide information to a potential employer about Complainant, but that such was an honest response to a request for a reference. No evidence of pretext was presented.

The Secretary distinguished the case of ABF Freight System, Inc. v. NLRB, No. 92-1550, 1994 U.S. LEXIS 1142 (Jan. 124, 1994).

XIII B 1 Blacklisting

In Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the complainant alleged that he was blacklisted by the respondent. The respondent's General Counsel prepared a memorandum to its Vice-President for Nuclear Power, with an attached status report on ERA cases. The memorandum and status report allegedly appeared in local newspaper articles and was disseminated to some extent outside of the respondent's management. The complainant, however, failed to show that the memorandum and status report had been used for any purpose other than to apprise the respondent's management of the status of ERA cases and civil actions against it, to assist managers in responding to inquiries by NRC and others, and to clarify the procedure for handling ERA complaints. oreover, the record contained no evidence that the respondent disseminated these documents to the newspaper or other outside sources. The memorandum and status report contained no language or instructions detrimental to the complainant.

[Editor's note: In its unpublished decision affirming the Secretary's decision, reported at 1992 U.S. App. LEXIS 6570, the Sixth Circuit noted that Howard's subsequent complaints alleging inability to secure employment due to the alleged blacklisting were not under review in the instant action.]

XIII B 3 Contesting of workers' compensation

[Nuclear and Environmental Whistleblower Digest XIII B 2]
ADVERSE ACTION; DECISION TO DENY DISABILITY RETIREMENT

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

ADVERSE ACTION; AGENCY'S COMMUNICATION WITH OWCP UPON DISCOVERY THAT COMPLAINANT WAS IMPROPERLY RECEIVING DISABILITY BENEFITS UNDER FECA
[N/E Digest XIII B 2]

During an ERA whistleblower hearing, Complainant voluntarily disclosed that while collecting both total and partial disability FECA payments from TVA, he had returned to work but had not returned the disability checks. TVA had earlier become aware of that Complainant was improperly receiving both total and partial disability through a routine review by TVA of OWCP charges for benefits paid. After the matter was brought to the attention of OWCP, both of Complainant's disability payments were terminated. Complainant then filed an ERA whistleblower complaint asserting that TVA discriminatorily persuaded OWCP to terminate his FECA benefits.

TVA's communication with OWCP in an attempt to have Complainant's eligibility for FECA benefits reviewed was found not to violate the ERA because TVA's actions were specifically authorized by FECA regulations. See 20 C.F.R. § 10.140. The Board concluded that Complainant was "attempting to improperly circumvent the preclusive and binding effects of his adverse OWCP and ECAB rulings under the FECA through this separate and unauthorized action in a matter exclusively within the purview of the FECA. 5 U.S.C. §§ 8116(c) and 8128(b) (1988)." Slip op. at 13 (footnote and case citations omitted).

Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996).

XIII B 3 Compliance with EEOC order of relief

In Grizzard v. Tennessee Valley Authority, 90-ERA- 52 (Sec'y Sept. 8, 1992), the Secretary adopted the ALJ's recommended dismissal of the complaint. The Secretary had earlier remanded the case to the ALJ for further consideration of the complainant's allegation that the respondent had delayed implementation of a Equal Employment Opportunity Commission order of relief. In response to the ALJ's order directing the parties to advise whether the respondent had complied with the EEOC decision, the respondent provided documentation of compliance, while the complainant did not respond. Accordingly the ALJ concluded that the allegation of noncompliance was moot, and recommended dismissal.

XIII B 3 Jurisdiction/Adverse action

Contrary to the ALJ's findings, the Secretary held that it is not beyond the purview of the ERA to consider an allegation that the respondent delayed implementation of an EEOC order, issued in the complainant's favor, in retaliation for complainant's protected participation in an ERA proceeding.

Grizzard v. Tennessee Valley Auth., 90-ERA-52 (Sec'y Sept. 26, 1991).

XIII B 4 Adverse action; reduction in salary

Adverse employment action includes a reduction in salary. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995) (reduction of $3.40 an hour).

[Nuclear & Environmental Whistleblower Digest XIII B 4]
ADVERSE ACTION; SMALLER SALARY INCREASE THAN CO WORKERS

In Gutierrez v. Regents of the University of California , ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB determined that Complainant's having received a smaller salary increase than other workers was an adverse employment action where internal audit work had been taken away from Complainant based on his protected disclosures of safety concerns. The lack of such work content was the only objective difference between Complainant and workers who got larger raises.

XIII B 5 Denial of parking privilege

Where Respondent assertedly denied temporary handicap parking privileges to Complainant while a prior ERA complaint was pending, the Secretary found that parking can be privilege of employment and that the prior administrative proceeding was a proceeding commenced under the ERA, the parking privilege complaint stated a cause of action. Bassett v. Niagara ohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986).

ADVERSE ACTION; COMPANY CAR; COMPANY POLICY
[N/E Digest XIII B 5]

In Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995), the Complainant contended that removal of his company car when he was assigned to Senior Reactor Operator school violated the employee protection provision the ERA. The Secretary, however, found that the Complainant failed to overcome the Respondent's evidence that other employees with status equal to the Complainant's also lost their company cars while attending SRO school, although there was evidence that a more senior employee did not. The Respondent explained that the Complainant's car was provided because he was required to go to the plant at unusual hours, while the senior employee's car was part of his compensation package.

[Nuclear and Environmental Whistleblower Digest XIII B 6]
ADVERSE ACTION; COMPLAINANT DID NOT ESTABLISH THAT HIS RESIGNATION IN PROTEST OF THE TIMING A REACTOR RESTART WAS A CONSTRUCTIVE DISCHARGE WHERE IT WAS NOT REASONABLE TO BELIEVE THAT RESPONDENT WOULD HAVE RESTARTED THE REACTOR IN A DANGEROUS MANNER

In Hoffman v. NextEra Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant's general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, to which the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted that the resignation was a constructive discharge. The ARB found that substantial evidence supported the ALJ's finding that the Complainant was not constructively discharged. Several other employees did not view the 12-hour time as an order but only a goal; no one person, including the plant's general manager, had the authority to order the restart of the nuclear reactor; the Complainant had not been required to do anything improper because of the stated 12-hour goal before he left the plant at the shift change; many people at the plant were responsible for the restart, and none of these similarly situated individuals felt forced to resign. The ARB thus agreed with the ALJ "that it would not be reasonable to believe that all of the people responsible for a restart would collude to restart in a dangerous manner, under NRC and INPO oversight, no less." USDOL/OALJ Reporter at 10. Finally, the ARB also noted that the Complainant had other means available to object to the 12-hour restart without a threat of being terminated or charged with insubordination, including confidential complaints to the NRC representative or directly to the NRC.

[Nuclear and Environmental Whistleblower Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; ALLEGEDLY HOSTILE ACTS OCCURRING PRIOR TO COMPLAINANT'S PROTECED ACTIVITY ARE NOT RELEVANT

In Hooker v. Westinghouse Savannah River, Co. , ARB No. 03-036, ALJ No. 2001-ERA-16 (ARB Aug. 26, 2004), the ARB held that the ALJ did not err in finding that allegedly hostile or otherwise adverse acts by the Respondent were not relevant to the Complainant's constructive discharge claim where they all occurred prior the date that the Complainant engaged in protected activity. The Complainant had argued that if the ALJ had considered these prior acts, he could not have granted summary judgment to the Respondent because the Complainant would have shown that intolerable work conditions forced him to resign. The ARB, however, noted that the ERA only prohibited an employer from discriminating against an employee because of protected activity.

XIII B 6 "Constructive partial discharge"

See Gomez v. University of Puerto Rico Medical Science Campus, 89-ERA-43 (Sec'y Apr. 20, 1995), in which the Secretary noted that the case involved a "constructive partial discharge," but did not rule on whether this was a cognizable ground on which to base an ERA whistleblower complaint.

[Nuclear and Environmental Digest XIII B 6]
CONSTRUCTIVE DISCHARGE IN TITLE VII CASES; PLAINTIFF'S BURDEN OF PROOF; AVAILABILITY OF THE ELLERTH/FARAGHER AFFIRMATIVE DEFENSE

In Pennsylvania State Police v. Suders , __ U.S. __, No. 03-95 (June 14, 2004), the U.S. Supreme Court rejected a Third Circuit decision under Title VII that a constructive discharge, if proven, constitutes a tangible employment action that renders an employer strictly liable and precludes recourse to the Ellerth/Faragher affirmative defense. Justice Ginsburg wrote:

Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.

To establish hostile work environment, plaintiffs like Suders must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [their] employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII's broad rule of workplace equality."). Beyond that, we hold, to establish "constructive discharge," the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth , 524 U. S. 742, and Faragher v. Boca Raton, 524 U.S. 775.

See also Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), 5th Cir. decision on applicability of Ellerth/Faragher hostile work environment analysis to ERA whistleblower complaints

[Nuclear & Environmental Whistleblower Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; SIXTH CIRCUIT CASELAW; MISREPRESENTATION AS CONSTRUCTIVE DISCHARGE

In Belt v. United States Enrichment Corp., Inc. , 2001 ERA 19 (ALJ Aug. 30, 2002), the ALJ reviewed Sixth Circuit caselaw under Title VII regarding the test for whether a complainant was constructively discharged. The ALJ cited Held v. Gulf Oil Co. , 648 F.2d 427, 432 (6th Cir. 1982), for the general proposition that for constructive discharge to exist it must be shown that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Continuing, the ALJ found that Sixth Circuit constructive discharge law requires an inquiry into both the intent of the employer and the objective feeling of the employee. The ALJ analyzed the facts and found that Complainant was not constructively discharged under this standard.

Complainant also alleged that he was mislead, tricked or defrauded into voluntarily applying for a reduction in force, which constituted a force of coercion and therefore a constructive discharge. The only caselaw the ALJ could find even touching on the subject was Baker v. Consolidated Rail Corp ., 835 F.Supp. 846 (W.D. Penn. 1993), an ADEA case. Although the ALJ did not entirely agree with all aspects of the rationale in that case, he agreed that misrepresentations could provide grounds for a constructive discharge if considered material and coercive by the court. The ALJ, however, found no evidence that Complainant was treated any differently than other employees in regard to the reduction in force.

[Nuclear & Environmental Whistleblower Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; WORK ENVIRONMENT MUST HAVE COMPELLED A REASONABLE PERSON TO HAVE RESIGNED

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd regarding applicability of Ellerth/Farager analysis, Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), the Complainants had presented sufficient evidence to establish the existence of a hostile work environment. One Complainant also presented a constructive discharge claim. The ARB observed that "a constructive discharge requires proof of a work environment that is more offensive than that required for establishing a [hostile work environment] claim." Id. , USDOL/OALJ Reporter at 60. The Complainant must establish working conditions so intolerable that a reasonable person would feel compelled to resign.

[Nuclear & Environmental Digest XIII B 6]
CONSTRUCTIVE DISCHARGE

In Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB found that Complainant had been subjected to a hostile work environment in violation of various environmental whistleblower provisions. In considering remedies the Board observed that "[T]he standard for finding constructive discharge is a higher one than for finding a hostile work environment. ... To prove constructive discharge, the employment conditions must be such that a reasonable person would feel compelled to resign." Id ., slip op. at 22 (citations omitted). The Board also observed that the instant case arose in the Second Circuit which applies a subjective standard: a complainant must prove that "the employer deliberately created working conditions that were 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Stetson v. NYNEX Svc. Co. , 995 F.2d 355, 360-61 (2d Cir. 1993) (under Age Discrimination in Employment Act), quoting Pena v. Brattleboro Retreat , 702 F.2d 322, 325 (2d Cir. 1983).

In Berkman , the ARB found that Complainant's supervisors deliberately created working conditions designed to force Complainant to resign or retire, such as engaging in tirades, threatening Complainant with a defamation lawsuit, removing many of his environmental duties or diminishing his position by requiring a supervisor to be present when he engaged in work duties. Complainant at this point, however, did not abandon his job despite suffering anxiety attacks, depression, shortness of breath, lack of concentration, memory lapses, and sleeplessness. Rather, he sought accommodations such as working at home part of the time (which was denied) or going on a part-time schedule (which was permitted for a short period). Finally, Complainant was faced with a dilemma return to full work as demanded by his supervisor -- or heed medical advice not to work full-time because of his precarious mental condition. Complainant decided to apply for disability retirement.

The ARB found that Respondent's harassment was the cause of Complainant's de- habilitation and inability to work a full day at the office, and that Respondent took active steps to exacerbate the work situation. The ARB stated that it would have been disinclined to find constructive discharge if Respondent had been willing to accommodate for more than a short time Complainant's medical need for part-time work.

For these, and other reasons, the ARB concluded that Complainant had been constructively discharged.

[Nuclear and Environmental Whistleblower Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; CONDITIONS MUST HAVE BEEN INTOLERABLE BECAUSE OF THE UNLAWFUL DISCRIMINATION

In Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant, whose history as a whistleblower was well known and who had issued several non-conforming reports (which he characterized as "imminent threats) while providing electrical systems inspection services on the Trans Alaska Pipeline System, requested reassignment after Alyeska changed the standards to be used to conduct inspections. Complainant explained that he had philosophical differences with the action taken to change the standards, and he could not ignore the safety problems he and other inspectors had reported. Complainant was placed on inactive status, eligible for reassignment. Following a hearing, the ALJ found that Complainant's request to be removed from this assignment was a constructive discharge. The ARB disagreed:

As developed by the courts, a "constructive discharge" occurs when an employee, who has not been terminated directly by his employer, finds his working conditions objectively so intolerable that it is necessary to resign his employment. However, as the Seventh Circuit Court of Appeals has held:

   Establishing constructive discharge is a two-step process. First, "a plaintiff needs to show that his working conditions were so intolerable that a reasonable person would have been compelled to resign." . . . Second, the conditions "must be intolerable because of unlawful discrimination ."
   Simpson v. Borg-Warner Automotive, Inc. , 196 F.3d 873, 877 (7th Cir. 1999), citations omitted, emphasis added....

   In the context of an environmental whistleblower case such as this, it is incumbent upon the complainant to establish both that working conditions were objectively intolerable, and that those conditions were the result of unlawful retaliation on the part of the employer. Here, the ALJ found that Tracanna had established the first element: He found that Tracanna's working conditions were so unsafe that a reasonable person would have been compelled to resign. However, the unsafe conditions upon which the ALJ rested his constructive discharge analysis were not the result of retaliation on ASIS' part ; they were the result of Alyeska's switch from the NEC to the AKOSH and ANSC Codes as standards to be used by ASIS in conducting the electrical inspections at VMT.

   Constructive discharge analysis is not applicable to every employment discrimination and retaliation case in which an employee has quit his job because working conditions were so intolerable that a reasonable person would have been compelled to resign; there must be a nexus between the intolerable conditions and discrimination or retaliation. Here that nexus is entirely absent: Tracanna requested removal from the AKOSH Project not because of unlawful discrimination but because of his belief that the AKOSH and ANSC standards were less safe than the NEC guidelines. Therefore, Tracanna's request to be removed from the AKOSH Project did not constitute a constructive discharge.

Slip op. at 6-7 (footnotes and one citation omitted).

[Nuclear and Environmental Whistleblower Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; MERE DISSATISFACTION WITH AN ASSIGNMENT DOES NOT ESTABLISH

In Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant was laid off when he asked to be removed from his position. Within a matter of days after his layoff, Respondent offered him two positions, both of which he rejected. Other offers followed; however Complainant rejected all but a few temporary positions because the assignments offered to him did not meet his specifications. The ARB found that under these circumstances, Complainant's subsequent resignation was not a constructive discharge. The ARB wrote:

The standard by which an alleged constructive discharge is measured is a stringent one. The Ninth Circuit, in which this case arises, has held that:

To support his claim of constructive discharge, [a plaintiff is] required to demonstrate that . . . a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996). An isolated incident of mistreatment is not enough; [plaintiff] had to show aggravating factors such as a continuing pattern of discriminatory treatment. See id. at 1411-12; King v. AC & R Advertising, 65 F.3d 764, 767-68 (9th Cir. 1995) (stating that, to defeat a summary judgment, the claimant "had to show that the conditions giving rise to his resignation were extraordinary and egregious") (applying California law of constructive discharge).

Huskey v. City of San Jose , 204 F.3d 893, 900 (9th Cir. 2000); Fielder v. UAL Corp ., 218 F.3d 973, 987 (9th Cir. 2000) (same). Of critical importance here is that dissatisfaction with an assignment, a poor performance rating, or even a demotion "does not by itself trigger a constructive discharge." The plaintiff must show that "the conditions giving rise to his resignation were extraordinary and egregious. . . ." King v. AC & R Advertising , 65 F.3d 764, 767-68 (9th Cir. 1995).

[Nuclear & Environmental Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; FOURTH CIRCUIT LAW; FAILURE OF COMPLAINANT TO ESTABLISH, OBJECTIVELY, THAT CONDITIONS WERE SO INTOLERABLE AS TO COMPEL RESIGNATION

Looking to Title VII caselaw for guidance, the ARB in Martin v. The Dept. of the Army , ARB No. 96-131, ALJ No. 1993-SDW-1 (ARB July 30, 1999), observed that the Fourth Circuit the circuit in which this case arose applies a minority "subjective" standard, that a constructive discharge occurs when an employer intentionally renders an employee's working conditions intolerable, whereas the majority of circuits use an "objective" standard, which asks only whether, in response to the employer's actions, a reasonable person in the employee's position would have felt compelled to resign. The ARB concluded that, as applied by the courts, the distinction between the two standards is minimal, and is in fact irrelevant, where, as in the instant case, the complainant fails to prove that working conditions were rendered so intolerable that the employee was compelled to resign. The ARB, in finding that the complainant failed in this proof, reversed the ALJ's recommended decision.

The ALJ had found four developments had combined to make the Complainant's working conditions so intolerable that he was constructively discharged. The ARB disagreed. First, Complainant was given a "highly successful" rather than his typical "exceptional" performance appraisal rating in retaliation for protected activity; the ARB, however, noted that Complainant suffered no adverse consequences from the lower appraisal and that it returned to the previous "exceptional" level in the following year. Second, Complainant, a plumber, had been reassigned to regular plumbing duties from his backflow prevention, testing and repair work; although this reassignment meant that less initiative and responsibility was required of Complainant, the ARB noted that Complainant suffered no loss in pay or reputation. Third, Complainant was required to answer directly to three supervisors for a period of time; the ARB found that Complainant's testimony indicated that he was not particularly perturbed by this situation.

Finally, the ALJ found that Complainant was ostracized by his co-workers; the ARB found that "[t]he few comments allegedly made by co-workers in connection with [Complainant's] whistleblowing activities appear to have been sporadic and short-lived in duration, and do not come close to reaching the level of intensity needed to demonstrate that conditions were so intolerable that [Complainant] was forced to quit." 1993-SDW-1 (ARB July 30, 1999) @ 10. The ARB noted that because it found that any co-worker ostracism did not rise to the level necessary to support a constructive discharge finding, it would not address the issue whether and under what circumstances co-worker ostracism can be found to constitute retaliation by an employer.

The ARB also considered whether Complainant's supervisor had treated Complainant in such an abusive manner as to constitute a constructive discharge, and found that the weight of the evidence did not support such a conclusion. Finally, the ARB found, as had the ALJ, that Complainant failed to prove that he was subjected to harassing telephone calls or that his truck had been sabotaged.

[N/E Digest XIII B 6]
CONSTRUCTIVE DISCHARGE; ANIMOSITY FROM CO-WORKERS

In Dobreuenaski v. Associated Universities, Inc. , 96-ERA-44 (ARB June 18, 1998), Complainant had released information to a television station and participated in a negative report about Respondent. The ARB, in affirming the ALJ's recommendation that Complainant had not proven a constructive discharge by a preponderance of the evidence, adopted the ALJ's finding that Respondent could not be fairly:

held responsible for any isolation, ostracism, or scorn to which Complainant was subjected by his co-employees. Many of these co-employees viewed the T.V. coverage as unfair, and threatening of their jobs without, and independent from, any encouragement from Respondent's management. This record fails to establish that Respondent independently or otherwise orchestrated and/or originated, any such adverse peer response.

Id . @ 13 (quoting ALJ's Recommended Decision).

XIII B 6 Constructive discharge

"Constructive" discharge assumes that a complainant was not formally discharged, the issue being whether he or she was forced to resign or whether he or she quit voluntarily. A finding of constructive discharge requires proving that working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign, i.e. , that the resignation was involuntary. Johnson v. Old Dominion Security, 86-CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 19-22 and n.11. Thus, the adverse consequences flowing from an adverse employment action generally are insufficient to substantiate a finding of constructive discharge. Rather, the presence of "aggravating factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981). Unless constructively discharged, a complainant is not eligible for post- resignation damages and back pay or for reinstatement.

In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), the record did not show that the Respondent took the requisite aggravating action to coerce the Complainant's resignation, most of the stress she experienced during her tenure at Respondent's facility having predated the protected activity and adverse action. Although the Respondent had accessed her assigned computer during an extended absence, there was testimony that management merely was attempting to retrieve procedures that she had been assigned to develop, and the Secretary concluded that this single incident did not meet the standard set forth above. Accordingly, the Complainant's relief was limited to recovering costs and expenses, including attorney fees, reasonably incurred in bringing her complaint. In addition, the Secretary ordered Respondent to refrain from unlawfully discriminating against the Complainant, and to post and circulate the Secretary's decision at its facility.

XIII B 6 Inclusion in layoff

Inclusion in a layoff constitutes adverse action. See Emory v. North Bros. Co., 86-ERA-7 (Sec'y May 14, 1987), slip op. at 10.

Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 11.

XIII B 6 Adverse action

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

The court found that Mackowiak was clearly discriminated against by his Employer in violation of Section 5851, Energy Reorganization Act when Mackowiak was given a Confidential Counseling Statement placing him on probation, transferred to less desirable employment, and discharged ahead of less senior inspectors during a lay-off, all for an unsubstantiated "attitude" problem. The court held that those adverse employment decisions were retaliatory action, motivated at least in part by Mackowiak's reporting of internal safety and quality complaints, which was "protected activity" under the Act.

XIII B 7 Failure to comply with term of settlement agreement

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

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

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

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

[N/E Digest XIII B 7]
ADVERSE ACTION; ANTICIPATORY VIOLATION OF SETTLEMENT AGREEMENT

In Thompson v. Houston Light & Power Co. , 96-ERA-34 and 38 (ALJ Aug. 19, 1997), Complainant filed a complaint based on an anticipatory breach of an earlier settlement agreement that had been approved by the Secretary of Labor. Specifically, Complainant raised concerns whether Respondents would be able to comply with a provision of the settlement agreement providing that Respondents would "warrant that Complainant's access to the South Texas Project has not been suspended, revoked or denied." The ALJ found that Complainant's theory was that "Respondents will not be able to perform as warranted by [this provision because it] is unenforceable as violative of NRC rules and/or regulations, i.e. , [the provision] is unenforceable as against public policy."

The ALJ ruled on summary decision against Complainant, holding that a complainant cannot bring before the ALJ either an action to enforce a settlement, or a motion to set aside an executed and Secretary-approved settlement agreement. Alternatively, the ALJ ruled that the complaint could not be founded in anticipatory repudiation of the settlement agreement, because "to make out a case for anticipatory breach, there must be an underlying valid contract provision. It is specifically Complainant's complaint in this case that the underlying provision is unenforceable and, a fortiori , it can not be breached by anticipatory repudiation." The ALJ, however, noted that he was not basing his ruling on a holding that anticipatory repudiation of a settlement agreement can never be actionable under the ERA.

XIII B 7 Adverse employment action; violation of settlement agreement

Violation of a settlement agreement may under some circumstances constitute a separate, independent violation of the ERA.

In Gillilan v. Tennessee Valley Authority, 91-ERA- 31 and 34 (Sec'y Aug. 28, 1995), however, the Secretary found that the Complainant failed to raise a prima facie case of retaliation where, under the terms of a prior settlement agreement, the Respondent was to reissue a service review rating and according to the Complainant, the Respondent delayed issuing the reviewed rating as further reprisal. The Secretary noted that there was no final settlement of the prior case approved by the Secretary as required by the ERA (the Secretary had disapproved it because it called for sealing the record). Although the Respondent voluntarily reissued the service review, it was not obligated to do so for purposes of the ERA. Further, there was no allegation or indication that reissuing the service review fell within the "terms, conditions, or privileges" of the Complainant's employment. Thus, the Secretary concluded that the delay in reissuing the rating did not constitute an adverse employment action within the purview of the whistleblower provision of the ERA.

[Nuclear and Environmental Digest XIII B 8]
REFUSAL TO HIRE CASE; SUMMARY DECISION WARRANTED WHERE UNDISPUTED EVIDENCE SHOWED THAT THE COMPANY HAD DETERMINED THAT IT WOULD INTERVIEW STUDENTS WHO HAD PARTICIPATED IN A COMMUNITY COLLEGE PROGRAM BEFORE INTERVIEWING OTHER EXTERNAL CANDIDATES

In Saporito v. Exelon Generation Co., LLC , ARB No. 12-034, ALJ No. 2010-ERA-12 (ARB Aug. 22, 2013), the Complainant alleged that the Respondent's failed to hire him for a position in retaliation for past whistleblower activities in violation of the employee protection provision of the ERA. The ALJ granted summary decision in favor of the Respondent. The ARB affirmed the ALJ's summary decision. The ARB noted the elements of a "refusal to hire" case:

In refusal to hire cases, such as this, Saporito's proof of an adverse action is based on showing that: (1) he applied and was qualified for an available job; (2) he was rejected despite his qualifications; and (3) after his rejection, the position remained open and/or the employer continued to seek applicants of similar qualifications. Saporito v. Progress Energy Serv. Co. , ARB No. 11-040, ALJ No. 2011-ERA-006, slip op. at 6-7 (ARB Nov. 17, 2011), citing Hasan v. U.S. Dep't of Labor , 298 F.2d 914, 917 n.3 (10th Cir. 2002).

USDOL/OALJ Reporter at 5. The ARB also noted that in Hasan v. U.S. Dep't of Labor , the court of appeals held that a complainant can prove this third prong by showing that the employer filled the position, or left the position open, and continued to seek applicants with complainant's qualifications. 298 F.2d at 917 n.3.

The ARB found undisputed evidence in the instant case established that the Complainant was qualified for the advertised position, and that he was rejected despite his qualifications, but that the Respondent filed the position at issue before the Complainant was rejected and there was no evidence that other applicants were solicited after the Complainant's rejection. Because the Complainant did not establish the existence of a genuine issue of material fact regarding the third element of the refusal to hire case, a grant of summary decision was warranted.

The ARB also affirmed the ALJ's finding that protected activity was not a contributing factor in the Respondent's decision not to hire the Complainant for the position at issue. The Complainant had presented a statement from an employment expert that the Complainant was the most qualified for the position and that the company's failure to hire him raises an inference that protected activity contributed to the not-to-hire decision. The undisputed facts, however, were that the company had decided before advertising the position to first interview only qualified students from an educational/career-path partnership the company had with a community college before interviewing any other external candidates.

The ARB also affirmed the ALJ's finding that there was "clear and convincing evidence that the Respondent company would have taken the same unfavorable personnel action" in the absence of the protected activity because the undisputed evidence showed that the company's hiring priority for filling the external, entry-level position was to extend that employment opportunity to a student from the community college program.

One member of the Board dissented on the ground that the inherently complex issue of causation could not be summarily resolved in this case without the context provided by direct testimony and cross-examination, citing the Board's recent decision in Franchini v. Argonne Nat'l Lab. , ARB No. 11-006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012). The member also criticized the majority for too narrowly defining the third prong of a "refusal-to-hire" case: "If a complainant's refusal to hire claim fails because he was rejected after a position was filled, then every employer can simply escape liability for such claims by filling a job before rejecting applicants, as Saporito alleges ExGen did here. The majority seems to confuse the requirement that there be a final, adverse action (the job was either filled or a rejection occurred) with the general requirement for facts that support an inference of discrimination." USDOL/OALJ Reporter at 13.

[Nuclear and Environmental Digest XIII B 8]
REFUSAL TO HIRE; THIRD ELEMENT OF REFUSAL TO HIRE PRIMA FACIE CASE PERMITS COMPLAINANT TO SHOW EITHER THAT THE POSITION WAS FILED OR REMAINED OPEN; PRONG THREE INCLUDES AN INFERENCE OF CAUSATION ELEMENT; AN INFERENCE OF CAUSATION IS NOT RAISED MERELY BY MECHANICALLY RECITING THE ELEMENTS OF A PRIMA FACIE REFUSAL TO HIRE CASE, ALTHOUGH IT IS DIFFICULT TO DEFINE PRECISELY WHAT MORE IS NECESSARY

In Saporito v. Progress Energy Service Co. , ARB No. 11-040, ALJ No. 2011-ERA-6 (ARB Nov. 17, 2011), the Complainant filed an ERA complaint alleging that the Respondent retaliated against him when it refused to hire him for any of 15 jobs for which he applied. The ALJ granted summary decision against the Complainant on the grounds that the complaint was untimely as to 8 of the jobs, and because the Complainant had not stated a claim on which relief could be granted as to the other 7 jobs. On appeal, the ARB affirmed the ALJ's timeliness determination but remanded for further proceedings in regard to the other 7 jobs.

Initially, the ARB found that the ALJ had applied an overly restrictive standard as to the third element of a prima facie case for a refusal to hire claim. Specifically, the ALJ applied the criteria stated in Hasan v. Sargent & Lundy , ARB No. 03-030, ALJ No. 2000-ERA-7, slip op. at 3 (ARB July 30, 2004), that after a complainant's rejection, the position must have remained open and the employer continued to seek applicants from persons of complainant's qualifications. The ARB, however, noted that in a different Hasan case, the 10th Circuit Court of Appeals

ruled in an ERA "refusal to hire" case that the third prong, requiring a showing that the employer left the position open and continued to seek applicants, was "too limited." The court stated that rather than show that the position remained open, a complainant can either show that the position "was filled or remained open" and the employer continued to seek applicants with complainant's qualifications. This showing for complainants in refusal to hire cases - that a position remained open or was filled - is well settled and applies in ERA cases pursuant to Hasan , as it has applied in refusal to hire cases in other contexts.

USDOL/OALJ Reporter at 7 (footnotes omitted), quoting and summarizing Hasan v. U.S. Dep't of Labor , 298 F.3d 914, 917 (10th Cir. 2002).

The ARB then turned to what a complainant must proffer to survive a summary decision motion on the inference of causation element of a prima facie refusal to hire case. The ARB stated:

Even if a complainant makes a showing of adverse action, he or she must still assert facts supporting the element of causation to maintain a whistleblower claim under the ERA, i.e., that "there are circumstances that raise an inference that the protected activity was the likely reason for the adverse action." In the case of a refusal to hire claim, a causation showing that satisfies prong three may be met in a situation where the fact that a vacancy stayed open raised suspicion. If an employer continues to seek applicants with the same qualifications as the complainant, an inference of improper motive could arise related to the reason the employer provided for rejecting the complainant. Yet, it is also true that an inference of causation could arise because of the manner in which the job is filled. If it is filled with a substantially less qualified individual, again, an inference of improper motive could arise. But, again, to satisfy the causation element required under ERA, the key question is whether the allegations allow for an inference of a causal link between the protected activity and the employer's refusal to hire. Making allegations that track or fail to track the exact language of the previously mentioned prima facie elements may not be the determining factor in every case.

The ARB observed that the Complainant in the instant case had "repeatedly and mechanically" recited the elements of a prima facie refusal to hire case, and concluded that they were "nothing more than cookie cutter assertions falling short of the allegations sufficient to support an inference that actions were taken partly or entirely because of protected activity." The ARB stated that being known as a whistleblower and a failed attempt to obtain a job did not necessarily create an inference of retaliation. The ARB wrote:

We do not require the "facial plausibility standards" used in the federal courts, but a bit more is needed in this particular case. It is impossible to identify exactly how much more is needed, because there are too many variables. But some examples include a good faith assertion that he was more qualified than someone who was hired, or he was ranked among the top three candidates for one of the jobs, or the employment pool for a particular job was very small, or that the urgency to find someone was very high and yet the employer rejected an available and qualified applicant, etc. This showing may also be satisfied where there is temporal proximity between proceedings associated with one of his whistleblower complaints, and when he applied for a job.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB also noted that it was unclear from the Complainant's allegations whether the Respondent was still considering applicants or whether the Complainant had been rejected - in other words, whether the claims were ripe for litigation.

The ARB, however, remanded to permit the Complainant to amend his complaint and add information to support an inference of an ERA whistleblower claim for the 7 claims that were timely.

[Nuclear and Environmental Digest XIII B 8]
SUMMARY DECISION; REFUSAL TO HIRE CASE; REMAND

In Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB May 29, 2009), the Complainant had filed two ERA complaints alleging that the Employer failed to hire him in retaliation for protected activity. The ALJ had granted summary decision against the Complainant, and the ARB affirmed, albeit based on a different analysis than the one employed by the ALJ. On appeal to the Third Circuit, the court found that, given a finding by the ARB that for purposes of summary judgment internet advertisements posted by the Respondent offered actual job openings, and an undisputed fact that the Respondent did not hire the Complainant for any position, it could not affirm the ARB's ultimate conclusion that the Complainant failed to make a sufficient showing that his employment applications were rejected. Accordingly, the court vacated the ARB's decision and remanded for further proceedings. The ARB in turn remanded to the ALJ to consider the portion of the summary decision motion concerning whether the Complainant established a question of material fact regarding retaliation, i.e., whether his protected activity was a contributing factor in the Respondent''s failure to hire him for the advertised positions.

[Nuclear and Environmental Digest XIII B 8]
ADVERSE ACTION; FAILURE TO HIRE A QUALIFIED INDIVIDUAL FOR A POSITION IS A "REJECTION" FOR PURPOSES OF ESTABLISHING A PRIMA FACIE CASE

In Hasan v. USDOL , No. 07-3813 (3rd Cir. Sept. 25, 2008) (case below ARB No. 05-037; ALJ Nos. 2004-ERA-22 and 27), the Complainant twice responded to Internet advertisements by a consulting firm that places engineers with clients generating nuclear and other forms of power. In both instances, the Complainant's application referenced his prior whistleblowing activity, and in both instances the Complainant did not receive an employment offer. The Complainant filed ERA whistleblower complaints which were ultimately consolidated for hearing before an ALJ. Following discovery, the ALJ granted summary decision in favor of the Complainant. On review, the ARB also granted summary decision, but on a different ground. The ARB found that the Complainant failed to demonstrate a disputed issue of fact as to whether the Respondent took adverse action against him (specifically, whether the Respondent rejected the Complainant after he applied for the advertised civil/structural engineering positions). The Third Circuit held:

Given the ARB's conclusion that open job positions may have existed, as well as what appears to be the undisputed fact that Enercon did not hire Hasan for any position, we cannot discern how the ARB reached the conclusion that Hasan failed to make a sufficient showing that his employment applications were "rejected." We agree with the ARB's dissenting opinion that, in this context, a distinction - let alone a dispositive one - between "rejection" and "failure to hire" is not sustainable. See Dissent, Petitioner's Appx. at A20-21. A failure to hire a qualified individual for a position is a "rejection" for purposes of establishing a prima facie case. See Pivirotto v. Innovative Sys., Inc. , 191 F.3d 344, 352 (3d Cir. 1999) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)); see also Hasan v. United States Dep't of Labor , 400 F.3d 1001, 1004 (7th Cir. 2005) ( McDonnell Douglas framework applies to ERA claim that petitioner was not hired for an open job); Hasan v. United States Dep't of Labor , 298 F.3d 914, 917 (10th Cir. 2002) (same).

Slip op. at 5-6. The court remanded to the ARB for further proceedings.

[Nuclear and Environmental Digest XIII B 8]
REFUSAL TO HIRE CASE; WHERE THE RESPONDENT PRESENTED AFFIDAVITS CONTENDING THAT NO HIRING RESULTED FROM THE ADVERTISEMENT TO WHICH THE COMPLAINANT APPLIED, AND THE COMPLAINANT PRESENTS NO EVIDENCE THAT HE WAS REJECTED FOR THE POSITION, THE CLAIM FAILS

In Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB July 31, 2007), the ARB reiterated that in a "refusal to hire" case, a complainant to establish: 1) that he applied and was qualified for a job for which the employer was seeking applicants; 2) that, despite his qualifications, he was rejected and 3) that, after his rejection, the position was either filled or remained open and the employer continued to seek applicants from persons of complainant's qualifications. In Hasan , the ARB rejected the Respondent's contention that it was entitled to summary decision because its website advertisements, to which the Complainant had responded, were not placed to hire engineers for specific positions, but to recruit currently employed engineers and to enhance its database of potential candidates. The Respondent presented affidavits supporting the alleged motive for the website advertisements. Reviewing the language of the advertisements, however, the ARB found that a fact dispute existed as to whether the advertisements offered jobs, and therefore summary decision on this basis was not warranted. Nonetheless, the Respondent was entitled to summary decision because it also presented affidavits contending that the Respondent did not hire any engineers as a result of the advertisements. In response, the Complainant presented no evidence that he had been rejected for the advertised positions - an essential element of his refusal to hire claim.

One member of the Board dissented because in her view the fact that the Complainant was not hired was sufficient to prove that the Respondent rejected him. The dissenter stated that there was no precedent supporting the idea that there is any distinction under the ERA between being "not hired" and being "rejected." The dissenter wrote: "Although the majority's analysis could allow employers to insulate themselves from failure-to-hire cases, by simply omitting position titles from job advertisements and then not contacting non-selected applicants, the majority does not acknowledge this consequence and thus does not explain whether it is intended or, if not, how it can be avoided." USDOL-OALJ Reporter at 14. The dissenter also found that a material issue of fact existed on the question of whether anyone was hired in response to the advertisements, noting, inter alia , that 16 engineers had been hired during the time period covered by discovery.

[Nuclear and Environmental Whistleblower Digest XIII B 8]
REFUSAL TO HIRE; COMPLAINANT MUST ESTABLISH THAT HE WAS QUALIFIED FOR THE POSITION

In Hasan v. Sargent & Lundy , ARB No. 03-030, ALJ No. 2000-ERA-7 (ARB July 30, 2004), a refusal to hire case, the complaint was properly dismissed where the Complainant, a contract engineer, was unable to establish that he was qualified for the positions that were available.

[Nuclear and Environmental Whistleblower Digest XIII B 8]
ADVERSE EMPLOYMENT ACTION; FAILURE TO PROMOTE; HIREE BETTER QUALIFIED THAN COMPLAINANT

Where a position is filled by a clearly better qualified candidate, a whistleblower cannot establish that he suffered an adverse employment action as a result of his non-selection for the job, even though he is able to prove that he applied for the position, was qualified, and was rejected. Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004) (available at 2004 WL 1440554) (case below ARB No. 98-030, ALJ No. 1997-ERA-14).

XIII B 8 Failure to hire

Absent a discriminatory reason proscribed by law, an employer is free not to hire any individual. Thus, an employer's failure to hire a job applicant could constitute adverse action against him if it was based on his engaging in activity protected by the ERA. The Secretary applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (Title VII racial discrimination case), framework for determining whether a complainant in an ERA case has established adverse action in the failure to hire him. The pertinent part of the McDonnell Douglas test for a prima facie case in a refusal to hire situation quoted by the Secretary is:

(ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas Corp., 411 U.S. at 802.

In the case at bar, Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993), Complainant was able to establish that there were openings for which he was qualified and in which he had expressed an interest, and that he was rejected for consideration for those openings. Complainant, however, failed to establish a prima facie case because he did not introduce any evidence that Respondent continued to seek applicants with similar qualifications, or hired any similarly qualified persons for the openings. The Secretary rejected Complainant's contention that Respondent had the burden to establish that it did not hire another person with like qualifications for the position sought by Complainant. Rather, under McDonnell Douglas , Complainant had the burden to produce evidence that such a person was hired.

[Nuclear & Environmental Whistleblower Digest XIII B 8]
FAILURE TO HIRE; COMPLAINANT MUST ESTABLISH THAT HE WAS QUALIFIED FOR THE POSITION

In Hasan v. J.A. Jones, Inc. , ARB No. 02 121, ALJ No. 2002 ERA 18 (ARB June 25, 2003), Complainant applied for the position of "Piping Group Leader." In an e mail cover letter accompanying his resume, Complainant requested that the recipients not discriminate and retaliate against him "for being a Truthful and Honest Whistleblower of this Country and for filing a [previous] Whistleblower complaint against J. A. Jones, Inc., and its subsidiaries." When Complainant was not hired, he filed an ERA discrimination complaint. The ARB adopted the ALJ's findings that the hiring officials did not consider Complainant qualified for the piping group leader position and that his previous whistleblowing had no effect on that determination.

[Nuclear & Environmental Whistleblower Digest XIII B 8]
ADVERSE ACTION; NON SELECTION FOR PROMOTION; BOARD WILL NOT RE EVALUATE QUALIFICATIONS OF APPLICANTS IF EVIDENCE ESTABLISHES LEGITIMATE BASIS FOR DISTINGUISHING CANDIDATES

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd regarding applicability of Ellerth/Farager analysis, Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), one of the Complainants alleged that Respondent's failure to select him for a supervisory position was in violation of the ERA whistleblower provision. The ARB stated that to prevail on this claim, the Complainant was required to establish that he was qualified for the supervisory position, and that he applied for it, and that he was rejected in favor of a similarly qualified selectee. In the instant case, the ARB determined that Complainant had failed to establish that he and the individual selected were "similarly qualified." The Board wrote:

The record indicates that, as an incumbent supervisor with the Respondent, the selectee had an obvious advantage over [Complainant], despite [Complainant]'s years of managerial experience at a high level in the United States Navy. In examining a non selection claim, it is not our role to re evaluate the comparable qualifications of the candidates at issue if the evidence establishes a legitimate basis on which management could distinguish between the candidates' qualifications. See generally Nichols v. Lewis Grocer , 138 F.3d 563, 567 70 (5th Cir. 1998) (upholding employer's reliance on higher qualifications as evaluated by employer in case arising under Louisiana anti discrimination statute).

[Nuclear & Environmental Whistleblower Digest XIII B 8]
REFUSAL TO HIRE; EMPLOYER AWARE OF PROTECTED ACTIVITY ELEMENT

In Hasan v. USDOL , No. 01 9521 (10th Cir. Apr. 26, 2002) (case below 2000 ERA 14), the Tenth Circuit ruled that, to meet the "employer aware of the conduct" element of a prima facie case under 42 U.S.C. § 5851(b)(3), where the complaint is based on refusal to hire, it is sufficient to show that the Complainant's application letter included a statement setting forth his prior whistleblowing activities. It is not necessary to also allege that the official in charge of hiring saw the letter.

[Nuclear & Environmental Whistleblower Digest XIII B 8]
REFUSAL TO HIRE; "GATEKEEPING" ELEMENTS FOR AN ERA COMPLAINT

In Hasan v. USDOL , No. 01 9521 (10th Cir. Apr. 26, 2002) (case below 2000 ERA 14), the Tenth Circuit recited the ARB's test for the "gatekeeping" elements of a refusal to hire case:

To determine whether Mr. Hasan could proceed beyond the § 5851(b)(3) barrier, the ARB examined whether (1) he "engaged in protected conduct; (2) the employer was aware of that conduct; (3) the employer took some adverse action against him; and (4) there is evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action." ... The third element is subdivided into three prongs. The complainant "must allege: 1) that he applied and qualified for a job for which the employer was seeking applicants; 2) that, despite his qualifications, he was rejected; and 3) that after his rejection, the position remained open and the employer continued to seek applicants with his qualifications."

(footnote and citations omitted). The court, however, observed in a footnote:

Mr. Hasan does not challenge the Secretary's delineation of the elements of a prima facie case. We are concerned, however, that the Secretary's articulation of the third prong is too limited. See Amro v. Boeing Co. , 232 F.3d 790, 796 &n.2 (10th Cir. 2000) (clarifying that plaintiff may establish this element in a number of ways including that position for which he was not hired was filled or remained open following rejection of the plaintiff's application). In our discussion, we address both possibilities.

Slip op. at n.3 (emphasis in original). The court affirmed the ALJ and the ARB because:

The record shows that Mr. Hasan applied for any senior civil/structural engineering position at any salary in any location for which he was qualified. Mr. Hasan failed to allege that a position for which he was qualified was available and that respondent either filled that position or continued to search for applicants for that position after refusing to hire him. He merely made the conclusory statement that a company the size of respondent's always has positions open. This statement is insufficient to establish the third prong.

[Nuclear and Environmental Whistleblower Digest XIII B 8]
LAYOFF FOR NON-DISCRIMINATORY REASON; COMPLAINANT'S BURDEN SAME AS ANY OTHER REFUSAL TO HIRE CASE

Where an electronic systems inspector was laid-off for reasons that the ARB found were non-discriminatory, when Complainant sought reassignment he stood in no different position than any other inspector who had completed a project and was awaiting reassignment. Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001). Thus, Complainant "had the burden of proving both: 1) that he applied for a position that was available; and 2) that he was rejected in circumstances that raise the inference that the rejection was motivated by retaliatory animus." Slip op. at 13 (citations omitted). The ALJ had found that a large amount of inspector work was available and credited the testimony of Complainant's witnesses to that effect. The ARB, however, credited Respondent's witnesses who testified to the effect that no electrical inspector positions had been available that were not offered to Complainant. Moreover, the ARB found that Complainant had placed a number of conditions on his re-employment, and had failed to present any credible evidence that such a position existed. Therefore, Respondent's failure to place Complainant in a permanent position that met Complainant's requirements following his layoff was not retaliatory adverse action.

[Nuclear & Environmental Digest XIII B 8]
REFUSAL TO HIRE; KNOWLEDGE OF COMPLAINANT'S STATUS AS A WHISTLEBLOWER

In Hasan v. Florida Power and Light Co. , ARB No. 01-004, ALJ No. 2000-ERA-12 (ARB May 17, 2001), Complainant alleged that he had been discriminated against in violation of the whistleblower provision of the ERA when Respondent did not offer him a job after he applied for a position as a civil/structural/pipe support engineer. Complainant had applied for a job in September 1999; on November 6, 1999 he wrote to Respondent and essentially announced that he had a history of whistleblowing; when he did not receive a favorable reply by November 19, 1999, he filed a complaint with OSHA. Before the ALJ, Respondent filed a motion to dismiss based on the failure of Complainant to assert that Respondent knew of Complainant's whistleblower history when he decided not to hire him. In response, Complainant asserted that Respondent's counsel had been representing Respondent for years, and that his name appears on the Internet in connection with prior whistleblower lawsuits. The ARB interpreted Complainant's response as an allegation that the employees responsible for making hiring decisions learned of his protected activity either from Respondent's counsel or from reading decisions in previous cases published on the DOL Office of Administrative Law Judges' web site.

The ARB found that Complainant's mere speculation that Respondent's counsel informed hiring officials of Complainant's protected activity, or they learned it themselves by reading decisions posted on the DOL web site, was insufficient to establish a prima facie case. Complainant complained that he was not permitted discovery to establish facts in support of his claim. The ARB, however, stated that a complainant "cannot simply 'file a conclusory complaint not well-grounded in fact, conduct a fishing expedition for discovery, and only then amend his complaint in order to finally set forth well-pleaded allegations.'" Slip op. at 4, quoting Hasan v. Commonwealth Edison Co. , ARB No. 00-028, ALJ No. 2000-ERA-1 (ARB Dec. 29, 2000).

To the same effect: Hasan v. Commonwealth Edison Co. , ARB No. 01-002, ALJ No. 2000-ERA-8 (ARB Apr. 23, 2001) (Complainant who does nothing more than submit his resume to Respondents and then allege that Respondents have discriminated against him because he remains unemployed has not supported a claim of discrimination under the ERA; a complaint that fails to allege a prima facie case is subject to immediate dismissal).

In Hasan v. Burns & Roe Enterprises, Inc. , ARB No. 00-080, ALJ No. 2000-ERA-6 (ARB Jan. 30, 2001), Respondent produced on motion for summary decision the affidavit of the official who received Complainant's resume and determined that he was not interested in hiring him. The official averred that his decision not to hire was made based on the original submission and before Respondent's receipt of a second letter from Complainant indicating that Complainant had engaged in whistleblowing activity. The official also averred that he never saw the second letter and knew nothing more about Complainant than what was disclosed in the earlier resume and cover letter. Moreover, the official averred that he decided not to hire Complainant based on his lacking a required professional engineer license and because the company had not needed engineers with nuclear experience since 1986. The ARB found that this affidavit indicated that two threshold elements of a prima facie case were lacking: hiring official's knowledge of applicant's prior whistleblowing activity, and retaliatory motive. Complainant responded with his own affidavit speculating as to the reasons he was not hired, which the ARB held was insufficient to overcome Respondent's motion for summary decision.

[Nuclear & Environmental Digest XIII B 8]
REFUSAL TO HIRE; FAILURE TO ALLEGE THAT POSITION REMAINED OPEN AFTER REJECTION

1) that the complainant applied and qualified for a job for which the employer was seeking applicants; 2) that, despite the complainant's qualifications, he or she was rejected; and 3) that after his or her rejection, the position remained open.

In the instant case, Complainant failed to allege the third factor, and therefore failed to establish a prima facie case.

[Nuclear & Environmental Digest XIII B 8]
REFUSAL TO HIRE; PRIMA FACIE CASE NOT ESTABLISHED BASED MERELY ON COMPLAINANT'S UNSOLICITED APPLICATION FOR A JOB

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

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

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

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

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

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

Slip op. at 5 (footnote omitted).

[Nuclear and Environmental Digest XIII.B.8.]
ADVERSE ACTION; DISCRIMINATORY FAILURE TO HIRE

In Hasan v. Commonwealth Edison Co. , 2000-ERA- 7 , 8 , 10 , 11 , 12 , 13 and 14 (ALJ Oct. 5, 2000), Complainant filed a series of whistleblower complaints alleging discrimination and relation based on failure to hire. Each of the cases were dismissed for failure to state a claim where Complainant failed to allege a prima facie case in any of the various complaints. The recommended decisions focused on the second requirement for a prima facie case of retaliation, which requires adverse action on the part of the Respondent. The ALJ wrote that in order to establish a prima facie case of discriminatory refusal to hire, the complainant must show: (1) that he applied and was qualified for a job for which the employer was seeking applicants; (2) that, despite his qualifications, he was rejected; and (3) that after his rejection the position remained open and that employer continued to seek applicants from persons of complainant's qualifications. In each of the cases, the ALJ found that Complainant had failed to allege one or more of these elements.

[N/E Digest XIII B 8]
ADVERSE ACTION; FAILURE TO HIRE OR REHIRE

In cases of failure to hire or rehire, in order to show that adverse employment action occurred, complainants must establish that they were qualified for the position, they applied for the position, the employer was otherwise obligated to consider them, and the employer hired another individual not protected by the Acts or the position remained vacant after the application was rejected. Thus, in Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet , 95-CAA-7 (ARB Feb. 13, 1997), Complainant failed to carry his burden of proof where he did not prove that he requested or applied for renewal of his position or that Respondent was otherwise obligated to consider him for renewal.

ADVERSE ACTION; NONSELECTION; COMPLAINANT'S BURDEN
[N/E Digest XIII B 8]

An employer's nonselection of a complainant for employment does not necessarily constitute an adverse employment action; an employer is free not to hire any individual absent a discriminatory reason proscribed by law. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995), citing Samodurov v. General Physics Corp ., 89- ERA-20, slip op. at 10 (Sec'y Nov. 16, 1993). In Frady , the Complainant was required to establish in this regard that he was qualified; that despite his qualifications, he was rejected; and that the Respondent continued to seek and/or select similarly qualified applicants.

The Complainant applied for several positions, and carried his burden in regard to several. In regard to one position, however, he was unable to establish discriminatory nonselection where the Respondent established that the Complainant would not have been selected in view of the superior qualifications of the candidates who were selected.

In regard to another position, the Respondent presented testimony that the decision was made not to fill an inspector position applied for by the Complainant because of downsizing concerns. The Complainant established that he was clearly qualified for the position, and that at least two inspectors were returned to work after the vacancy announcement had been cancelled. Although the two other inspectors were returned to work pursuant to settlement of ERA complaints, the Secretary held that [t]he fact that these inspector positions were not filled in the usual course of business . . . does not undermine the conclusion that the pressures of downsizing . . . were not determinative of [the] decision not to fill the inspector position [at the time the Complainant applied for it]. Slip op. at 36 n. 26.

XIII B 8 DECISION NOT TO REHIRE; PERMISSIBILITY WHERE KNOWLEDGE OF PRIOR PROTECTED ACTIVITY, BUT ALSO OF PRIOR CONFLICTS IN WORKPLACE

In Gibson v. Arizona Public Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18, 1995), the Complainant was not selected for possible reemployment. The decision was made by a supervisor who previously had been a foreman in the Complainant's department, and although he did not directly supervise the Complainant, was aware of the Complainant's role in "childish bickering" and in violating a memo that had directed employees to stop such activities. He testified candidly that the Complainant told him about the contacting the NRC and using it as leverage to keep his job.

The Secretary found that the Complainant failed to carry his burden of showing that the decision not to rehire was a pretext for retaliation where the Complainant had less nuclear experience -- and less recent experience -- than any of those selected for the job. The Secretary also noted that the supervisor took into account Complainant's statements about not being able to work with certain people and his perception that the Complainant spent too much time talking rather than working.

XIII B 8 Refusal to rehire

An employer's refusal to rehire a former employee constitutes an "adverse employment action." Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995) (citing Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir., 1986).

XIII B 8 Failure to rehire based on settlement agreement

In Bryant v. Ebasco Services, Inc., 88-ERA-31 (Sec'y Apr. 21, 1994), as part of a settlement agreement regarding Complainant's original ERA whistleblower complaint, there was an oral agreement to rehire complainant to a comparable position -- at least according to Complainant. Respondent contested the existence of such an oral agreement, but the ALJ found that there was such an agreement based on credibility determinations. The Secretary declined to make a finding on this matter in view of his finding that Respondent presented sufficient evidence of its legitimate reasons for not rehiring Complainant so as to rule out any discriminatory motive.

The Secretary found that Complainant presented evidence on all the elements of a prima facie case, but noted that Respondent presented uncontroverted testimony that it sought reemployment for Complainant by submitting his name for work on potential future contracts, and that Respondent's clients decided which of the offered candidates are hired. Later, Respondent discovered - - after the negotiation of the settlement agreement and Complainant's filing a his second ERA complaint (for violating the terms of the settlement agreement and blacklisting) -- that Complainant had misrepresented his educational qualifications for the position. After that date, Complainant was not considered for rehire.

The Secretary found that Complainant failed to show pretext, noting that Complainant admitted that he is not qualified for positions in a nuclear power facility. The Secretary also found that even assuming Complainant's protected activity played a part in the failure to rehire, under the "dual motive" analysis, Respondent sufficiently demonstrated that it would not have rehired Complainant even absent the protected activity.

In a footnote, the Secretary observed that in cases involving the post-discharge discovery of resume fraud, the after-acquired evidence doctrine has been applied by the courts to bar recovery by complainants. See McKennon v. Nashville Banner Publishing Co., 9 F.3d 539 (6th Cir. 1993); Summers v. State Farm Mut. Auto Ins. Co., 864 F.2d 700 (10th Cir. 1988); Puhy v. Delta Air Lines, Inc., 833 F. Supp. 1577 (N.D. Ga. 1993).

XIII B 9 Failure to provide safety information and services

In Helmstetter v. Pacific Gas & Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993), the complainant (an employee of the respondent's marketing department) heard about an oil spill concerning the respondent's equipment at a client's site, and without instruction, went to investigate. The site was not one of his marketing accounts. The complainant noticed problems with the clean up and got some of the spilled substance on his hands and clothing. Later that day the complainant informed responsible officials employed by the respondent about the spill. The respondent provided safety and health advice and services to its employees involved in the clean up, but not to the complainant. The chemicals involved were later confirmed to have been PCBs.

The complainant contended in his TSC/SWD whistleblower complaint that the respondent took adverse action against him by denying him a privilege of employment -- the safety and health information, advice, and services it provided to the employees who cleaned up the spill.

The Secretary declined to dismiss the complaint under the aegis of a 12(b)(6) motion. She noted that the complainant had alleged a novel type of adverse action involving the failure to provide information and services. Compare Bassett v. Niagara ohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986), slip op. at 4 (denial of requested handicap parking privileges may be adverse action under the ERA).

The ALJ had found that the allegation of disparate treatment in affording safety and health advice and services was inadequate because the complainant did not allege that he was similarly situated with other employees who were treated differently. In cases under the similar whistleblower provision of the Energy Reorganization Act, however, a complainant need not "prove that he was treated differently from other similarly situated" employees to establish a prima facie case. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). Accord Batts v. Tennessee Valley Authority, 82- ERA-5 (Sec'y Mar. 6, 1985), slip op. at 3 n.2; Wells v. Kansas Gas & Elec. Co., 83-ERA-12 (Sec'y June 14, 1984), slip op. at 9 n.4, aff'd sub nom., Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986).

For decisions construing the analogous whistleblower provision of the Surface Transportation Assistance Act, see Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Sept. 15, 1989), slip op. at 14, aff'd sub nom., Roadway Express, Inc. v. Dole, 929 f.2d 1060 (5th Cir. 1991); Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987), aff'd sub nom., Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (per curiam); Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 45, aff'd sub nom., Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987).

The Secretary noted, however, that if the complainant can establish his prima facie case on remand, the question of whether he was similarly situated to any other employees who received different information or treatment may be a proper consideration in evaluating the respondent's defense under the further allocation of the burden of proof. Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991), slip op. at 5.

Since the whistleblower provisions at issue remedy discrimination in the employment context, the Secretary directed that the focus on remand will be on the respondent's duty to the complainant as an employee rather than as a member of the general public.

[Note: This determination was made under the aegis of the respondent's 12(b)(6) motion, so the facts were viewed in the light most favorable to the complainant]

XIII B 10 Libel suit

A libel suit brought against a Complainant by the Respondent is not an adverse personnel action within the purview of the Toxic Substances Act, 15 U.S.C. § 2622, where it was a tort action and not an action "with respect to the employee's compensation, terms, conditions, or privileges of employment". Hanna v. School District of the City of Allentown, 79-TSC-1 (Sec'y July 28, 1980), reversed on other grounds, School District of the City of Allentown v. arshall, 657 F.2d 16 (3d Cir. 1981).

XIII B 11 Referral to employee assistance program

In Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994), the Secretary found that merely referring an employee to the Employee Assistance Program does not cause any diminution in the terms or conditions of employment, but that in the instant case, the results of the referral constituted adverse action. As a result of the referral, a psychologist found that Complainant suffered from a mental disorder, Complainant was not permitted to return to work at the nuclear power plant where he had been employed, and after his sick leave and vacation days ran out, he was eventually placed in a position in which there was less opportunity to earn overtime pay and less opportunity for advancement.

ADVERSE EMPLOYMENT ACTION; FORCED REFERRAL FOR MEDICAL TREATMENT
[N/E Digest XIII B 11]

Forcing an employee to see a medical doctor during work hours constitutes an adverse employment action; however, that action is not necessarily retaliatory. See Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996).

In Smith , where there was much support for the conclusion that the Complainant needed medical attention and presented a possible safety risk, the Respondent was not required to defer to the Complainant's subjective opinion that he could continue working. The Complainant's theory was that the was sent to a doctor to prevent him from reporting and correcting faulty scaffolding. The Complainant had been given supervisory responsibility over fixing the scaffolding following his complaints about their safety.

XIII B 12 Refusal to hire on permanent basis

In Stultz v. Buckley Oil Co., 93-WPC-6 (ALJ Aug. 23, 1993), the ALJ held that refusal to hire on a permanent basis constitutes adverse action.

XIII B 13 Reneging on offer to withdraw termination

In Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the Secretary found that, although a complaint based on termination was not timely, the ALJ should consider on remand the separate allegation of a discriminatory act occurring when the respondent withdrew its earlier offer to withdraw the termination if the complainant submitted a letter of resignation purportedly because the complainant spoke to reporters about a disputed sewage plant project. The Secretary did not express an opinion on whether this allegation was cognizable or meritorious as a complaint, but left these determinations for the ALJ on remand. She noted that while former employees may be afforded protection under the whistleblower provisions at 29 C.F.R. Part 24, see Cowan v. Bechtel Construction, Inc., 87-ERA-29 (Sec'y Aug. 9, 1989), the question as presented in the posture of the case at bar has not been addressed.

XIII B 14 Retaliatory harassment; extended deposition of complainant

In Delcore v. Northeast Utilities, 90-ERA-37 (ALJ June 11, 1990), the administrative law judge recommended dismissal of the complainant's ERA complaint, the gist of which was that he was subjected to retaliatory action by respondent because he was subjected to a three-day deposition concerning a suit he brought against the respondent in another forum. The ALJ noted that the complainant had not been an employee of the respondent for a long time at the time of the alleged retaliatory action, and that the ERA protected only the "compensation, terms, conditions or privileges" of employment. The ALJ also noted that the complainant's attorney could have objected to the deposition in the other forum.

[Nuclear & Environmental Digest XIII B 14]
ADVERSE ACTION; DRAFT STANDARDS OF CONDUCT

In Moore v. U.S. Dept. of Energy , ARB No. 00-038, ALJ No. 1999-CAA-15 (ARB Jan. 30, 2001), Complainant argued that draft standards of conduct for the Transportation Safeguards Division (TSD) of DOE's Albuquerque Operations Office were issued to retaliate against him for filing prior whistleblower complaints and had a chilling effect on TSD employees' exercise of their whistleblower rights. The ARB, however, found that mere circulation of a draft set of standards of conduct for the express purpose of eliciting comment from TSD employees, on which employees did comment, and which were never finalized because of the negative comments, did not constitute adverse action. In fact, the ARB found the complaint to be frivolous and wholly lacking in merit.

XIII B 14 Harassment by co-worker

Where, as the result of complainant's complaint, safety procedures were changed and one work crew was caught violating the new procedure, and the complainant was subjected to offensive behavior in the lunchroom by one member of that crew, the rude behavior did not constitute adverse action where the rude person had a longstanding reputation for engaging in such behavior and the ALJ found that the lunchroom incidents had no role in the complainant's being selected for layoff. The complainant had asserted that the lunchroom antics were intended to provoke him either to quit his job or to get in a fight and therefore be subject to discharge.

Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 11 (the layoff itself, however, was clearly an adverse action).

XIII. B. 14. Retaliatory harassment

In Saporito v. Florida Power & Light Co., 90- ERA-27 and 47 (ALJ Nov. 6, 1990), the ALJ found that Complainant had sought to intervene in a proceeding concerning amendments to the technical specifications for two of Respondent's nuclear generating units. Complainant's standing became an issue because an NRC rule provided that an intervenor must either work or reside within 50 miles of the nuclear power plant. Complainant filed a affidavit stating that his job location and hours of work brought him within the NRC's 50 mile rule. One of Respondent's attorneys in the specifications amendments proceedings wrote to Complainant's employer to verify the information contained in the affidavit. Later, when Complainant asserted that the letter was intimidating, Respondent's counsel wrote a letter of apology, which he copied on Complainant's employer. Complainant then asserted a second attempt to harass, intimidate and embarrass him because the letter of apology had been copied on his employer. At the hearing, Complainant's supervisor at the time of receipt of the first letter testified that the letter seemed to be routine salary and employment verification request. The ALJ found that the letters "were merely a verification of information request and a letter of apology. . . . The language of both the initial inquiry and the subsequent apology were not coercive, intimidating or threatening. Indeed, the correspondence appears direct and professional."

On review, the Secretary adopted the ALJ's findings and conclusions. In Saporito v. Florida Power & Light Co., 90-ERA-27 and 47 (Sec'y Aug. 8, 1994).

XIII. B. 14. Retaliatory harassment

On review, the Secretary adopted the ALJ's findings and conclusions. In Saporito v. Florida Power & Light Co., 90-ERA-27 and 47 (Sec'y Aug. 8, 1994).

XIII B 14 Retaliatory harassment cause of action (abusive or hostile work environment)

In English v. Whitfield, 858 F2d 957 (4th Cir. 1988), the Fourth Circuit recognized a claim of a discrimination by retaliatory harassment. Analogizing to Title VII cases, the court indicated that when a superior harasses a subordinate because of that subordinate's protected "whistleblowing" conduct, that superior "discriminates" on the basis of the protected activity. In remanding the case to the Secretary for further consideration, the court directed the Secretary to be guided by Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S Ct 2399, 91 LEd2d 49 in regard to the nature and degree of harassment required to create an "abusive or hostile working environment" amounting to discrimination.

[what was the subsequent history; did the Secretary apply eritor?]

XIII.B.14 Contentious business meeting is not, by itself, adverse action

In Marien v. Northeast Nuclear Energy Co., 93-ERA- 49 and 50 (ALJ June 27, 1994), the ALJ recommended dismissals of complaints based on failure to establish the adverse action element of a prima facie case. The Complainants alleged that the adverse action against them came in the form of harassment and intimidation, particularly at one meeting. Although the ALJ did not find that the events at the meeting transpired precisely as Complainant asserted, he found that assuming for the sake of argument that they did, the mere fact that voices were raised and accusations were made could not be sufficient by themselves, to be regarded as an adverse action on the part of Respondents. The ALJ found that Complainants' allegations of an adverse impact on their medical and emotional health were unsubstantiated.

The ALJ also took into account that Complainants admitted that they suffered no other form of retaliation such as reassignment, loss of pay, adverse performance evaluation, or denial of a vacation.

XIII B 14 Abuse of discovery in unrelated suit; former employee

In Delcore v. Northeast Utilities, 90-ERA-37 (Sec'y Mar. 24, 1995), the ALJ erred in recommending summary decision where examination of the record revealed several issues of material fact.

Specifically, the ALJ had found that the Complainant was not covered by the ERA whistleblower provision because he had not been an employee of the Respondent for quite some time before the alleged discriminatory treatment, and that the theory on which the Complainant's complaint was based -- being subjected to a three-day deposition concerning a suit he brought against the Respondent in another forum -- was not a basis for relief under the ERA whistleblower provision. Delcore v. Northeast Utilities, 90-ERA-37 (ALJ June 11, 1990).

The Secretary indicated that a former employee is covered if the alleged discrimination in some manner is related to or arises out of the employment relationship, and that the discovery in the proceedings in the other forum must be examined to determine whether the Respondent engaged in a prohibited action under 29 C.F.R. § 24.2(b) ("intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against" an employee). The Secretary also found a material issue of fact to be whether the Respondent took such action because the Complainant engaged in protected activity.

XIII. B. 15. Personal opinion of complainant's credibility

In Saporito v. Florida Power & Light Co., 90- ERA-27 and 47 (ALJ Nov. 6, 1990), the ALJ related the following sequence of events:

Complainant formed an environmental organization whose purpose is to "ensure that the nuclear power plants in Florida operate safely and in full compliance with federal regulations.
On February 14, 1990, Complainant in his capacity as Executive Director of the organization requested that the NRC investigate an allegation that a quality control inspector was resigning because he was being forced to sign- off on things he had not inspected. Complainant released the allegation to all media sources, and the following day, The Miami Herald published a story based on Complainant's allegation.
On February 16, 1990, the employee who Complainant alleged had been forced to resign, wrote a letter to the NRC refuting Complainant's allegations. The letter was distributed to the local media. The letter questioned the credibility of Complainant's organization.
An investigator called both Complainant and Respondent's communication coordinator for comments. The communications coordinator was reported in the Palm Beach Post as having said that "finally this may be one more nail in [Complainant's] coffin." At the hearing, the communications coordinator testified that he believed his comment was an off-the-record response to a request for his personal opinion.
Complainant contended that he was humiliated and embarrassed by the remark because the paper was distributed widely around his residence. Further, he alleged that the comment made it more difficult for him to do his environmental work since it tended to dry up channels of communication with Respondent's workforce.

ALJ slip op. at 4-6. The ALJ analyzed the comment under the criteria stated in NLRB v. Erie Register Corp. , 373 U.S. 221 (1963): conduct is regarded as inherently discriminatory if the natural consequence of the action is to encourage or discourage certain conduct on the part of an employee. If actions are so deemed, the employer is held to have intended the foreseeable consequences of its actions and specific proof of discriminatory intent is not required.

The ALJ found that the comment went to Complainant's credibility rather to his engagement in protected activity -- it was not inherently discriminatory. The ALJ noted that Complainant had presented no evidence to support his allegation the comment caused a chilling effect, and that Complainant's own lack of credibility in making the refuted accusation was the cause of any loss of contact with Respondent's employees. ALJ slip op. at 15- 17.

On review, the Secretary agreed with the ALJ's conclusions, noting that it was far from clear what, if any, consequences "foreseeably and inescapably flow[ed]" from the comment.
Saporito v. Florida Power & Light Co., 90-ERA- 27 and 47 (Sec'y Aug. 8, 1994), slip op. at 4, quoting Erie Register, 373 U.S. at 228..

[Nuclear and Environmental Whistleblower Digest XIII B 15]
ADVERSE EMPLOYMENT ACTION; "SHUNNING" BY CO-WORKERS MUST HAVE HAD A TANGIBLE EFFECT ON TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT TO BE ADVERSE ACTION

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant argued, inter alia , that upon transfer to a new position, she was subjected to adverse employment action because she had been shunned by co-workers. The ARB affirmed the ALJ's finding that the alleged shunning was not an adverse action because it had no tangible effect on the terms, conditions or privileges of the Complainant's employment. In addition, the ARB found that the Complainant had failed to prove that her co-workers knew about her protected whistleblowing activity.

[Nuclear & Environmental Digest XIII B 15]
ADVERSE EMPLOYMENT; TENTH CIRCUIT CASE LAW

XIII B 16 Evidence that transfer was a demotion

The court agreed with the Secretary that the following was evidence that employee's transfer was a demotion:

the new job was far less attractive and prestigious;
his new tasks were below his proven capabilities;
he no longer had supervisory responsibilities;
his new work included certain clerical functions;
he was moved from his own office to a shared work table in an open room with no telephone;
he would remain "invisible" and not even sign his name to reports.

DeFord v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983).

[Nuclear & Environmental Whistleblower Digest XIII B 16]
ADVERSE ACTION; REMOVAL OF PROJECT AND REASSIGNMENT; LATERAL TRANSFER

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB observed that as a general matter, lateral transfers not entailing a demotion in form or substance do not rise to the level of a materially adverse employment action. Such a transfer, however, to a position with different job responsibilities and employment conditions may constitute adverse action even in the absence of a reduction in salary or benefits. For instance, exposure to greater risks, transfer to a job that the employee could not perform, a less desirable shift perceived by co workers as punishment, all may constitute attributes of a transfer that may be adverse employment action. In Jenkins , the Board found that although Complainant may have suffered a "bruised ego" when she was transferred, only her specific assignments were subject to change, and without a showing of consequential loss of promotional opportunities or other perquisites of employment, the reassignment was not adverse action under the circumstances. Although Complainant's assignments were reduced, her performance objectives were accordingly modified, and she was not penalized in her performance rating for the reduced workload.

[Nuclear & Environmental Digest XIII B 16]
ADVERSE EMPLOYMENT ACTION; NOTICE OF AT-RISK STATUS AND SIMULTANEOUS OFFER FOR NOMINALLY PERMANENT POSITION

Where, shortly after Complainant raised safety issues that could have significantly delayed the opening of Respondent's nuclear facility, Complainant was notified of a transfer to "at-risk" Services, and given the opportunity to apply for a nominally permanent position in "Services" (a neophyte and ultimately short-lived organization for marketing the services of at-risk employees), the ARB found that these actions constituted adverse employment action. Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001),

[N/E Digest XIII B 16]
INVOLUNTARY TRANSFER; CONSTRUCTIVE DISCHARGE

In Boudrie v. Commonwealth Edison Co ., 95-ERA-15 (ARB Apr. 24, 1997), the Board clarified its understanding of the law regarding involuntary transfers:

An involuntary transfer to a demonstrably less desirable position is an adverse employment action because it affects the employee's "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 5851(a)(1);... Moreover, the fact that an employee refuses to accept a retaliatory transfer, or acquiesces to the transfer for only a short period of time, and quits, does not render the retaliatory act of transferring the employee moot. Instead, the employee's refusal to accept the transfer is relevant to the remedy to which the employee may be entitled. ... If the employee is found to have been constructively discharged, reinstatement would be appropriate and post-resignation back pay would be allowed. ... If the employee is found not have been constructively discharged, such relief would be inappropriate.

Slip op. at 7 (citations omitted).

XIII B 16 Adverse action; transfer

In Harrison v. Stone & Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995), the Complainant's transfer from an inside position working on the development of the drywell to a job outside the containment vessel around the reactor was adverse employment action where the outside job was a less desirable job.

XIII B 16 Adverse action; transfer to less desirable position

Adverse employment action includes transfers to less desirable positions, even if no loss of salary is involved. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995) (Complainant demoted from Environmental Compliance Officer to warehouseman and later groundskeeper; went from office job to warehouse and field).

XIII B 16 Transfer to less desirable position without loss in salary

Whistleblower provisions prohibit discrimination with respect to an employee's compensation, terms, conditions, or privileges of employment, including transfer to a less desirable position, even though no loss of salary may be involved. Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995).

XIII B 16 Transfer; different responsibilities

In Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec'y Mar. 17, 1995), the Secretary held that an involuntary transfer, even though to a job with the same pay and benefits, constituted adverse employment action where, although similar, the responsibilities were different, Complainant did not believe he was qualified to act in the new capacity, and therefore his tenure as an employee would have been threatened.

XIII B 16 Transfer to less desirable job

Transfer to a less desirable job may constitute adverse action. Deford v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983). Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

XIII B 16 Transfer to less desirable employment

Transfer to a less desirable position is adverse employment action, even though no loss in salary is involved. Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 13-14 and n.13.

XIII B 16 Reassignment not retaliatory

The respondent did not take retaliatory action against the complainant where it reassigned him from an on-site mechanic position to shop mechanic because of the complainant's complaints of health problems resulting from leaking exhaust fumes from the service van. The Secretary concluded that the reassignment was not retaliatory because the reassignment was designed to remove the complainant from the alleged source of his health problems, minor repairs were made to the van, and the reassignment resulted in no loss in pay or hours of work. The Secretary rejected the complainant's contention that the shop work was merely janitorial. Hadley v. Quality Equipment Co., 91- TSC-5 (Sec'y Oct. 6, 1992).

XIII B 16 Reorganization

Where, after years of study, a city consolidated a water filtration department and a water and steam distribution department, and as a result, the Complainant's job title changed from Superintendent of the Water Filtration Department to Operations Supervisor of the Water Plant, his duties did not change but he reported to the former Water and Steam Distribution Superintendent -- who was selected as the Superintendent of the new department -- rather than directly to the Public Utilities anager as under the previous organization, and where the Complainant received a five per cent salary increase, the record did not establish adverse action or discrimination against the Complainant. The selection of the new superintendent was not shown to have been based on in any way on an intent to discriminate against the Complainant. Prafke v. City of Fairmont, Minnesota, 83-SDW-1 (Sec'y Nov. 4, 1985).

[The ALJ had found that the decision to place the former Water and Steam Distribution Superintendent in the new Superintendent position was based on the Complainant's lack of training or expertise necessary to run the water distribution, steam distribution, and water filtration activities. Prafke v. City of Fairmont, Minnesota, 83-SDW-1 (ALJ Oct. 19, 1983).]

XIII.B.16. Transfer to new shift

In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), adverse actions included suspension from work; a one day suspension without pay; drug and alcohol urine screening; and a written reprimand for making threats against corporate officers.

When the Complainant returned to work after the suspension, he was switched to the day shift without any loss in pay for a period of 30 days so that a different supervisor could observe him. Absent evidence that the switch in shifts caused difficulties for the Complainant, the Secretary found that this was not an adverse action.

XIII B 16 Transfer

Where Complainant was transferred from a "surveillance and enforcement" unit to the "permits and requirements" unit, the record supported a finding that the transfer constituted adverse action in response to protected activity. The transfer constituted adverse action in that it prevented Complainant from performing supervisory duties and field enforcement work, which he preferred.

McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993).

XIII B 16 Less desirable employment -- Complainant's subjective opinion

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

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

XIII B 16 Transfer to less desirable job

Transfer to a less desirable job may constitute adverse action. DeFord v. Secretary of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983) (although rate of compensation not changed, transferred employee "found he was not welcome, that he was no longer a supervisor, and that his job was by no means secure").

Thus, in Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992), where a Complainant was transferred from a relatively mobile, outdoor pipeyard job to a constrained, isolated warehouse position, and as a result also lost of overtime opportunities, the transfer was sufficiently unfavorable to constitute adverse action.

See Holsey v. Armour & Co., 743 F.2d 199, 206-212 (4th Cir. 1984), cert. denied, 470 U.S. 1078 (1985) (manipulation of an employee's bumping privileges, preventing a black manager from supervising white employees in her department, and systematic harassment are examples of adverse action); See also Klein v. Indiana Univ. Trustees, 766 F.2d 275, 277-278 , 280-281 (7th Cir. 1985) (altering an employee's work schedule); Griffith v. Michigan Dept. of Corrections, 654 F. Supp. 690, 695 (E.D. Mich. 1982) (false accusations and setups, intimidating comments, threats to terminate employment); Sparrow v. Piedmont Health Sys. Agency, 593 F. Supp. 1107, 1118 (M.D.N.C. 1984) (denial of customary employment recommendation).

XIII B 16 Transfer to isolated, administrative position

The environmental whistleblower provisions generally prohibit discrimination with respect to an employee's compensation, terms, conditions, or privileges of employment, including transfer to a less desirable position even though no loss of salary may be involved. Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994) (citing DeFord v. Secretary of Labor, 700 F.2d 281 283, 287 (6th Cir. 1983) for the proposition that although the rate of compensation was not changed, the transferred employee "found he was not welcome, that he was no longer a supervisor, and that his job was by no means secure"; also citing analogous employment discrimination cases).

In Jenkins , Complainant had been engaged in "challenging, technical work that utilized her chemical background fully and required interaction with the related community and the public" but was transferred "to an isolated, administrative position." The Secretary found this transfer to constitute adverse action, and quoted with approval the ALJ's observation that "putting an employee in isolation with little to do [can] have as adverse [an] impact on an employee . . . as reducing his or her pay or even firing the employee."

[Nuclear and Environmental Digest XIII B 17]
ADVERSE ACTION; PIP MEETINGS WHICH OBJECTIVELY QUERIED THE COMPLAINANT ABOUT HIS PROGRESS

In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the ALJ found that the requirement that the Complainant attend "hostile, derogatory, and negative" bi-weekly meetings on a PIP constituted adverse employment action. The ARB, however, listened to tape recordings that the Complainant made of the meetings and examined notes taken by one of the supervisors, and found that although the meetings would have been difficult and very stressful, they were not hostile, derogatory and negative. The recordings revealed that the supervisors objectively queried the Complainant about his program: "The supervisors are not loud. They do not sound angry. They are objective." USDOL/OALJ Reporter at 11. The ARB found that the bi-weekly meetings did not constitute materially adverse action.

XIII B 17 Disciplinary letter as adverse action

Even though a disciplinary letter does not result in a firing or demotion of a complainant, such drastic action is not required to render such a letter adverse. See, e.g., Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990), slip op. at 15 (warning letters that "served to progress [the c]omplainant toward suspension and discharge" adversely affected him even though the letters did not result in suspension or discharge). Helmstetter v. Pacific Gas & Electric Co., 86-SWD-2 (Sec'y Sept. 9, 1992).

[Nuclear & Environmental Whistleblower Digest XIII B 17]
ADVERSE EMPLOYMENT ACTION; RATING OF "EXCELLENT" RATHER THAN "OUTSTANDING"

In Sasse v. Office of the U.S. Attorney, USDOJ , ARB No. 02 077, ALJ No. 1998 CAA 7 (ARB Jan. 30, 2004), Complainant, an Assistant United States Attorney (AUSA), argued that performance evaluations rating certain of his work as "excellent" rather than "outstanding" resulted from his being held to higher performance standards than other AUSAs because of his environmental crimes work. The ARB observed that a downgraded personnel evaluation may constitute an adverse action, but that it had "not had occasion to determine whether an excellent rather than outstanding on an element of a performance appraisal which does not affect the overall performance appraisal rating is a material adverse action" particularly where the Complainant suffered no economic loss or opportunities for advancement as a result. The Board found that because the Complainant's allegation that he was held to a different and harsher performance standard rested entirely on his own uncorroborated and vague testimony, he had not carried his burden of proof and persuasion on the issue of adverse employment action. In other words, the Complainant's "vague impressions of office practices [were] insufficient to support a finding of disparate treatment." The Board also found that the DOJ had proved that the performance appraisals were based on the quality of the Complainant's work rather than discriminatory animus.

[Nuclear & Environmental Whistleblower Digest XIII B 17]
ADVERSE EMPLOYMENT ACTION; MUST BE RETALIATORY TO BE ACTIONABLE

Although a negative performance evaluation may constitute an adverse employment action, it is not actionable if it is found not to have been retaliatory. Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003).

[Nuclear & Environmental Whistleblower Digest XIII B 17]
ADVERSE ACTION; NEGATIVE PERFORMANCE RATING

In Gutierrez v. Regents of the University of California , ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB reiterated that commentary in a performance evaluation that does not implicate tangible job consequences is not actionable, but that a portion of a performance appraisal may constitute an adverse action, even where the overall rating is satisfactory, if the evaluation is in retaliation for engaging in protected activity and can result in tangible consequences.

In the instant case, Respondent had included a notation of "unfavorable customer feedback" in Complainant's Performance Assessment and in an appended note. The ARB found that these were adverse actions because: 1) the comment and addendum did not address Complainant's job performance per se, but rather faulted him for engaging in protected activity; 2) the comment and addendum suggested that Complainant could improve his performance, and consequently his pay, if he stopped his protected activity; 3) the comment and note became part of the Complainant's personnel record and could be consulted in making promotions and taking other personnel actions; 4) Complainant's appraiser failed to adhere to Respondent's Administrative Manual when he added the note to the Performance Assessment without Complainant's signature; 5) Respondent's policy and practice were to take comments in a Performance Assessment into account in determining an employee's pay increase; and 6) the appraiser did take Gutierrez's Performance Assessment and job content into account in making his salary determination.

Compare Daniel v. TIMCO Aviation Services, Inc. , 2002 AIR 26 (ALJ June 11, 2003) (ALJ argues that "tangible consequences" should not be merely ones that impact on narrow pecuniary interests, but also ones likely to stifle protected activity).

[Nuclear & Environmental Digest XIII B 17]
ADVERSE EMPLOYMENT ACTION; OFFERS OF WORK DESIGNED TO KEEP COMPLAINANT AWAY FROM WORK THAT WOULD PUT HIM IN POSITION TO REPORT SAFETY VIOLATIONS

In a recommended decision, the ALJ in Tracanna v. Arctic Slope Inspection Service , 1997-WPC-1 (ALJ Sept. 18, 1998), found that Complainant's activities fit the purposes of the whistleblower provisions of the various federal environmental statutes. The ALJ concluded that Respondent's repeatedly offering Complainant positions that were in different areas than his area of expertise as an electrical inspector or merely short-term electrical inspector positions -- along with the fact that such full-time positions were available -- indicated that Respondent purposely kept Complainant away from full-time positions where he could cause trouble. The ALJ also found that Respondent's concerted efforts to offer Complainant employment outside of electrical inspector positions "was an effort, not only to conceal their removing him from such positions, but also to document their offers of 'generosity' so that [Complainant] would not be able to claim retaliation at some later point." Slip op. at 19.

The ALJ also found that Respondent's placing Complainant on indeterminate lay off and continuous offering of inferior positions constituted a constructive discharge.

ADVERSE EMPLOYMENT ACTION; NARRATIVE VERSUS ULTIMATE RATING
[N/E Digest XIII B 17]

The narrative contained in a performance appraisal may constitute adverse action, even if the ultimate rating does not. Varnadore v. Oak Ridge National Laboratory , 92-CAA- 2 and 5, 93-CAA-1 and 94-CAA-2 and 3, slip op. at 32 (ARB June 14, 1996), citing Bassett v. Niagara Mohawk Power Corp. , 85-ERA-34, slip op. at 4 (Sec'y Sept. 28, 1993).

ADVERSE ACTION; LOWER RATING, EVEN IF STILL GOOD, IS ADVERSE ACTION IF IT HAS AN ADVERSE IMPACT
[N/E Digest XIII B 17]

In Boytin v. Pennsylvania Power & Light Co. , 94-ERA-32 (Sec'y Oct. 20, 1995), the ALJ too narrowly defined the adverse action element of a retaliation case where he concluded that the Complainant's general performance rating was in the good range, and accordingly the Complainant was not harmed with regard to his career or salary, or the terms of his employment. The Secretary found that the Complainant's lower fractional rating resulted in nominally lower salary increases relative to comparable employees and that the Respondent was in tight financial situation and that comparative fractional ratings could have a bearing during a reduction in force. More importantly, however, the Secretary found that the Complainant s protected activity had the adverse impact of adversely affecting his working conditions. The Secretary noted that the stress of the hostile work situation caused the Complainant to take additional sick leave, and the use of sick leave was subsequently determined to be a negative factor regarding the Complainant s dependability. The Secretary held that it was not necessary to analyze the complaint as a hostile work environment case because the actions of the Respondent caused tangible job detriment. Citing Meritor Savings Bank v. Vinson , 477 U.S. 57, 64 (1986). The Secretary noted that the ERA must be broadly construed to prevent retaliatory intimidation of workers, and that [t]his breath of construction includes the form that the discriminatory actions against the employee may take and goes beyond a measurable dollar loss, although that criterion is in fact met in this case.

ADVERSE ACTION; PROVISION OF ADVERSE RECOMMENDATION TO OPM
[N/E Digest XIII B 17]

Providing an adverse recommendation to the Office of Personnel Management is tantamount to having an adverse performance appraisal on file in an employer's personnel office, and is adverse employment action (that is discrimination with respect to compensation, terms, conditions, or privileges of employment). Leveille v. New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995).

XIII B 17 Giving of poor reference actionable even though Complainant suffered no loss of employment opportunity

In Gaballa v. The Atlantic Group, 94-ERA-9 (ALJ May 16, 1995), the ALJ concluded that the rationale of the Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994) to the effect that the giving of a poor reference need not lead to loss of employment opportunities to be prohibited under the STAA, is readily extended to the ERA. In Gaballa, the Complainant had employed a reference checking agency to determine what kind of reference he would get from the Respondent.

XIII B 17 Negative comments in performance evaluation

In Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993), certain negative comments were made in Complainant's performance evaluation, but the ALJ found that the comments did not constitute adverse employment action because there was no proof of disparate treatment or disparate impact, no adverse economic effect, and no change in working conditions. The Secretary found that the ALJ had too narrowly defined the adverse action element of a prima facie case of retaliation. The ALJ improperly concentrated on the lack of any adverse economic impact resulting from the negative comment, and appeared to have improperly considered Respondent's motive, which is irrelevant at this stage of the analysis. Further, a complainant need not "prove that he was treated differently from other similarly situated" employees to establish a prima facie case. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983) Helmstetter v. Pacific Gas & Electric Co., 91- TSC-1 (Sec'y Jan. 13, 1993). The Secretary found that the negative comments and warnings contained in the performance evaluation are an adverse work evaluation, affected the terms of Complainant's employment, and they constitute an adverse employment action.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE ACTION; REFUSAL TO ACCEPT COMPLAINANT'S RESCISSION OF EARLIER RESIGNATION

In Addis v. Exelon Nuclear Generation Co, LLC , ARB No. 05-118, ALJ No. 2004-ERA-23 (ARB Oct. 31, 2007), the ALJ concluded that the Complainant had failed to demonstrate by a preponderance of the evidence that the Respondent's refusal to accept her rescission of an earlier resignation was adverse action. The ARB wrote: "Although the ALJ could have dismissed the complaint for failure to establish adverse action, the ALJ went on to examine whether Addis's protected activity was a contributing factor to the alleged adverse action because he found the law unsettled on the issue of whether an employer's refusal to accept a rescission of a resignation is adverse action. ... He concluded that the decision to accept her resignation was based on her "substandard performance as a unit supervisor" and not on her protected activity. �" The ARB affirmed the ALJ's finding that the Complainant had failed to prove by a preponderance of the evidence that her alleged protected activity contributed to the Respondent's decision to terminate her employment, and adopted the ALJ's decision.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; FAILURE TO PURSUE COMPLAINANT�S BUSINESS LEADS

In Seetharaman v. Stone & Webster, Inc. , ARB No. 06-024, ALJ No. 2003-CAA-4 (ARB Aug. 31, 2007), the ARB affirmed the ALJ's finding that the Respondent's failure to pursue business opportunities brought to the company's attention by the Complainant did not constitute adverse employment action.� The ALJ had found that the Complainant had not presented any evidence that the Respondent's alleged indifference to toward the Complainant's business leads limited his growth potential in the company and/or was the result of whistleblowing activities.� Seetharaman v. Stone & Webster, Inc. , 2003-CAA-4, slip op. at 11-12 (ALJ Nov. 30, 2005).

XIII B 18 Adverse action; other actions

In Saporito v. Florida Power & Light Co., 90-ERA-27, 47 (Sec'y Aug. 8, 1994), the Secretary adopted the ALJ's findings that the letters respondent wrote to ATI Career Training Center, co-respondent, were "merely a verification of information request and a letter of apology . . . [which] were not coercive, intimidating, or threatening [but were] direct and professional [which] . . . suggest[] no discriminatory intent or retaliatory motive. Additionally, the Secretary adopted the ALJ's findings that a derogatory statement made by another employee about complainant to the local newspaper was only an expression of that person's opinion and not an act of discrimination.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; DISSEMINATION OF DOCUMENT CRITICAL OF COMPLAINANT'S THEORIES AND RESEARCH WAS NOT ADVERSE ACTION WHERE THE COMPLAINANT DID NOT DEMONSTRATE THAT THE DISSEMINATION HAD ANY ADVERSE EFFECT ON HIS COMPENSATION OR THE TERMS, CONDITIONS OR PRIVILEGES OF HIS EMPLOYMENT; ALLEGATION OF BLACKLISTING REQUIRES SHOWING OF INTENT TO PREVENT FUTURE EMPLOYMENT

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant was a highly respected microbiologist at the EPA's Office of Research and Development who had been critical of EPA Rule 503 about the application of bio-solid wastes to land, claiming a lack of research into the harmful effects of pathogens released during sludge fertilization. The Complainant served as an expert witness in a wrongful death case grounded in allegation that the death was related to sludge fertilization. These activities prompted a national sludge fertilization company to produce a White Paper criticizing the Complainant's theories and research. This company e-mailed the White Paper to numerous persons in the industry and to EPA employees, including a scientist in EPA's Office of Waste Water Management who was the agency's contact regarding Rule 503. This scientist provided a copy of the White Paper to an attorney for another fertilizer company who was preparing for a state-level public hearing at which the Complainant was scheduled to speak in his personal capacity. That attorney circulated the paper at the hearing and indicated that it had come from the EPA.

On appeal before the ARB the question was presented whether the EPA scientist's dissemination of the White Paper was adverse employment action. The ARB held that it was not, even assuming for purposes of argument that the scientist had some supervisory authority over the Complainant or that the EPA failed to promptly remedy the situation. First, the ARB held that the Complainant failed to demonstrate that distributing the White Paper had any adverse effect on the compensation, terms, conditions or privileges of his employment with EPA. Although the Complainant was unhappy about the distribution and its denigrating contents, the ARB pointed to testimony that the White Paper was "common knowledge" and found that its distribution was not materially adverse to the point where it could dissuade a reasonable worker from engaging in protected activity. The ARB noted that, in fact, the Complainant had not been dissuaded, had continued to promulgate his views, and was eventually vindicated about the need for more research.

The ARB found that the Complainant's argument that distributing the White Paper was "badmouthing" was an allegation of blacklisting, which to be actionable requires a showing that information was disseminated to prevent a complainant from finding employment, and not merely subjective feelings toward the action. The ARB found that the Complainant's claims that the White Paper damaged his reputation and thus his future employment prospects failed because he provided no evidence that EPA managers intentionally disseminated damaging information that prevented him from finding employment. The ARB also found that EPA's failure to respond to the White Paper was not actionable blacklisting.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; FAILURE OF RESPONDENT TO STAND UP FOR THE COMPLAINANT'S REPUTATION

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant was a microbiologist at the EPA's Office of Research and Development, but who was working at the time of the filing of the complaints under the Intergovernmental Personnel Act at the marine sciences department of the University of Georgia. The Complainant had been vocal about a lack of adequate research into the harmful effects of pathogens released during sludge fertilization, and was serving as an expert witness in a wrongful death case grounded in allegation that the death was related to sludge fertilization. In his environmental whistleblower complaint the Complainant alleged that the EPA engaged in adverse employment action when it failed to respond and defend him when the sludge fertilization company against whom the wrongful death action had been filed, the University of Georgia, and an advocacy group supporting the safety of sewage sludge sent letters to the EPA questioning the scope of the Complainant's IPA at the University. The Complainant argued on appeal that EPA's failure to respond harmed his scientific reputation and undermined his hope of obtaining a professorship at the University. The ARB, however, found no evidence that EPA's actions adversely affected the Complainant's work or standing at the University, noting also that there was no evidence that the University had offered him a position or even that the Complainant had ever applied for employment there.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; COMPLAINANT'S OPINION THAT THE RESPONDENT'S ACTIONS HARMED HIS PROFESSIONAL REPUTATION IS INSUFFICIENT, STANDING ALONE, TO DEMONSTRATE MATERIALLY ADVERSE EMPLOYMENT ACTION

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant alleged that the Respondent's failure to credit his research in a Federal Register notice responding to a Congressionally commissioned report of the National Academy of Sciences on the scientific basis for EPA Rule 503, and EPA's failure to fund two scientific projects he had proposed, were adverse employment action because such actions harmed his professional reputation. The ARB agreed with the ALJ that there was scant, if any, evidence to demonstrate that EPA's actions were based on the Complainant's criticism of Rule 503. Moreover, the Complainant offered only his opinion that such actions harmed his reputation among his peers, which was insufficient to demonstrate that EPA's actions were actually, or potentially, materially adverse.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; RETALIATORY MOTIVE; A SUPERVISOR IS NOT UNDER AN OBLIGATION TO CLARIFY INSTRUCTIONS THAT WERE UNREASONABLY INTERPRETED BY THE COMPLAINANT AS A GAG ORDER

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant had been referred to the agency's Inspector General for an investigation of her contracting actions [the IG ultimately finding no misconduct], removed from a position in which she could make contract commitments on behalf of the agency and transferred to a new position. In a memo informing her of these actions, the Complainant's supervisor instructed her not to have discussions about contracts with other agency personnel, or with contractors for contract administration or management or technical direction. The Complainant sent an e-mail to the supervisor indicating that she construed this instruction as a gag order forbidding her to discuss anything with anyone. The ALJ found that that supervisor's failure to clarify the scope of his order was evidence of intent to discriminate against the Complainant. The ARB disagreed, finding that the agency had no duty to clarify instructions to subordinates and that the Complainant's interpretation of the instructions as a complete gag order was unreasonable. The ARB found that the supervisor's silence in the face of the Complainant's e-mail was not evidence of retaliation.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; WRITTEN WARNING, STANDING ALONE, IS NOT AN ADVERSE ACTION

A written warning was found not to constitute an adverse employment action in Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), where the warning had not been placed in the Complainant's personnel file and had no adverse impact on the terms, conditions, or privileges of the Complainant's employment.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; COMPLAINANT SUBJECTED TO "DIN OF HOSTILE REMARKS" AT STAFF MEETING

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant attended a staff meeting in which a FOIA officer stated that she had received an inquiry from a Congressman who had received a written complaint that the agency was destroying e-mail records to make them unavailable to FOIA requesters. The FOIA officer stated that if the person who complained to the Congressman had only first asked the FOIA office about the e-mail it could have been explained that the records were destroyed based upon a routine neutral policy and that hard copies of all the e-mails had been kept. The Complainant argued that everyone at the meeting knew it was she who had sent the letter to the Congressman, and that she had been subjected to the "din of hostile remarks" at the meeting. The Complainant presented this episode as evidence of a hostile work environment. The ARB, however, agreed with the ALJ that the hostility at the meeting was not severe enough to contribute to a hostile work environment, and that it was not adverse employment action because it had no tangible job consequences.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; HOSTILE WORK ENVIRONMENT; SUSPENSION OF FLEXIPLACE PRIVILEGES NOT ADVERSE ACTION WHERE THE SUSPENSION WAS NOT HUMILIATING AND DID NOT INTERFERE WITH JOB PERFORMANCE

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), after the Complainant's supervisor asked her several times to organize and file large piles of documents in her cubicle, but the piles remained, the supervisor suspended the Complainant's flexiplace privilege and photographed the cubicle to document the disarray. The flexiplace privilege was restored after the Complainant organized the documents. The flexiplace privilege was briefly suspended again several months later while the Complainant was unable to use her home computer. The ARB agreed with the ALJ's conclusion that these events did not contribute to a hostile work environment because they were not severe, were not humiliating, and did not interfere with the Complainant's job performance.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; POLITICAL ROUGH AND TUMBLE OF BOARD OF DIRECTORS OF PUBLIC ENTITY

In Anderson v. Metro Wastewater Reclamation District , No. 03-9570 (10th Cir. Sept. 2, 2005) (case below ARB No. 01-103, ALJ No. 1997-SDW-7), the Complainant was a political appointee to the Board of Directors of a metropolitan wastewater reclamation district ("Metro") who complained that she was discriminated against under the environmental whistleblower statutes by the Board cutting her off or ruling her out of order at Board meetings, denying her requests to distribute materials, subjecting her to a disclaimer requirement when making public statements, among other actions. The Tenth Circuit affirmed the ARB's holding that the Complainant did not have standing to pursue claims under the environmental laws, and went on to observe that it had "difficulty understanding how those complaints amount to 'discrimination' from which these statutes afford protection. While frustrating and unpleasant, the matters about which she complains appear to be part of the rough and tumble of politics and the by-product of a minority position on a political board. * * * A political remedy is best suited to a political wrong."

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; ADMINISTRATIVE HOLD ON UNRESTRICTED ACCESS

Placing a temporary "administrative hold" on the unrestricted access of two workers was not adverse employment action where such action did not sever the employment relationship or change the workers' clearance status; the Board found that the record did not support the Complainant's claim that this action harmed his job prospects at nuclear facilities because he would henceforward be required to report that his unrestricted access clearance had been denied at the Respondent's facility. McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005).

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; REPRIMAND THAT IS LATER USED TO JUSTIFY A SUSPENSION OR TERMINATION IS ADVERSE EMPLOYMENT ACTION

In Sayre v. Veco Alaska, Inc. , ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), one of the Respondents contended that a written reprimand advising the Complainant that she must show improvement in working with her colleagues, communicating with her supervisor and following procedures, was not an adverse employment action under Shelton v. Oak Ridge Nat'l Labs ., ARB No. 98-100, ALJ No. 1995-CAA-19 (ARB Mar. 30, 2001). In Shelton , the Board had held that written criticism is not adverse action unless it directly causes a tangible job consequence, such as loss of pay. In the instant case, the Board held that the reprimand was an adverse action because there was a connection between the reprimand and a later suspension without pay and eventual termination. Evidence in the record established that the previous reprimand had been used as a ground for the later suspension and termination.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE ACTION; REVOCATION OF SECURITY CLEARANCE; DOL'S LACK OF AUTHORITY TO REVIEW

In Hall v. United States Dept. of Labor, Administrative Review Board , No. 05-9512 (10th Cir. Feb. 13, 2007), the Complainant, a civilian chemist for the U.S. Army Dugway Proving Grounds whose position required a valid security clearance, contended that the Respondent retaliated against him by reinvestigating, suspending, and recommending revocation of his security clearance. The ARB declined to review the Army's security clearance actions because it concluded that it lacked the authority to do so under Department of the Navy v. Egan , 484 U.S. 518 (1988). On appeal, the Tenth Circuit affirmed, observing that "[u]ltimately � because of both the executive's constitutional supremacy and expertise in this area and outside authorities' lack of competence to evaluate [executive branch security clearance] decisions, neither agencies nor courts have authority to review the merits of the denial of a security clearance absent a clear statutory directive from Congress." The court rejected the Complainant's argument that Egan only applied to MSPB proceedings. It also rejected the Complainant's argument that it need not review the merits of the revocation decision, but only whether they constituted evidence of retaliatory motive or whether they contributed to a constructive discharge. The court found that this was a distinction without a difference, and observed that other courts consistently had applied Egan to cases involving antidiscrimination legislation similar to the environmental whistleblower protections at issue in the case sub judice . Finally, the Complainant argued that the ARB had the power to review the security clearance decision for compliance with procedural requirements. The court recognized authority to the effect that courts are not precluded from reviewing a claim that an agency violated statutory or regulatory procedures when revoking or denying a security clearance, but found that the Complainant's argument failed because (1) the Complainant made no clear, substantiated allegation, nor provided any relevant record citations, indicating that there had been a procedural failure by the Army in revoking the security clearance, and (2) "even if he did, what Dr. Hall essentially asks this Court to do is precisely what Egan makes clear is prohibited: to probe the legitimacy of the Army's motives to reach an outcome on the merits of Dugway's decision." Slip op. at 12.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; DOL DOES NOT HAVE THE AUTHORITY TO SECOND GUESS A FEDERAL AGENCY'S DECISION TO REVOKE A SECURITY CLEARANCE

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 had found that the Respondent took hostile action against the Complainant when it required him to undergo a new background investigation. The Complainant was a chemist with access to warfare agents required to maintain a valid security clearance. The ARB held that it does not have the authority to review the Respondent's reasons for recommending that the Complainant's security clearance be revoked, citing Dept. of the Army v. Egan , 484 U.S. 518 (1988). Although Egan involved the Civil Service Reform Act, the Board found that it was consistently applied by the courts in anti-discrimination legislation. The Board found that such courts had held that "in the absence of express statutory authority to review security clearance decisions, review of the employee's claim that the clearance process was discriminatory would violate the principles of Egan. The courts reasoned that they could not properly determine whether an agency decision affecting an employee's security clearance was a pretext for discrimination without evaluating the agency's reasons for changing the security clearance. And evaluating an agency's reasoning pertaining to security clearance decisions amounts to second guessing the agency, which is precisely what Egan prohibits." Slip op. at 17.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION/LEGITIMATE NON-DISCRIMINATORY REASONS; REQUIRING UNIQUE DISCLAIMERS ON SCIENTITIFIC PAPERS; FLAWED PEER REVIEW PROCESS; ACTIONS OF SUBORDINATE COLLEGUE; INACTION ON REQUEST FOR INFORMATION ABOUT COMPLAINANT'S QUALIFICATIONS; MONITORING OF WRITINGS WITH POLICY IMPLICATIONS; CONSULTATIONS WITH AGENCY COUNSEL

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

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

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

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

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

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

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; COMPLAINANT'S ULTIMATUM

In Smith v. Western Sales & Testing , ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004), the ARB found that the Respondent's sending the Complainant on paid leave for three months as a "cooling off" period was in retaliation for protected activity. Later, the Complainant engaged in discussions with the Respondent about the terms of his return to work. The testimony was conflicting, but the ARB, relying on the ALJ's demeanor based credibility determinations, found that the evidence showed that the Complainant presented an ultimatum at the meeting setting conditions for his return that were unacceptable to the Respondent. The Respondent's interpretation of the ultimatum as a decision by the Complainant not to return to work, therefore was found not to constitute adverse employment action.

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION AND HOSTILE WORK ENVIRONMENT; FAILURE TO REINSTATE; WITHHOLDING INFORMATION NECESSARY TO PERFORM JOB; IDLING; DISCOURAGING EMPLOYEES FROM PURSUING OLD CONCERNS; ATTENTION TO ABSENTEEISM

In Erickson v. U.S. Environmental Protection Agency 03 CAA 11 and 19, 2004 CAA 1 (ALJ Nov. 13, 2003), the ALJ had earlier issued a lengthy recommended decision finding in part in favor of Complainant on issues of adverse employment and hostile working conditions. The instant complaints alleged that 19 additional actions by Respondent were adverse employment and hostile work. Finding that some of the actions were adverse employment actions or created a hostile work environment and that some were not in violation of the whistleblower laws, the ALJ essentially found that Respondent's failure to reassign Complainant to other duties as required by the reinstatement order of the first decision, and certain other actions, constituted pervasive harassment constituting adverse action and hostile working conditions. The decision is too detailed for a fully descriptive summary, but rulings of note include:

Withholding information necessary for job performance constitutes a hostile work environment.
A supervisor's leaving post it notes on Complainant's door when he could not find her in her office and questioning her about absences was not, under the circumstances, an adverse personnel action but routine and necessary supervisory actions.
Idling of Complainant ( i.e. , failing to assign enough duties to keep Complainant fully occupied) was adverse employment action in that it deprived her of meaningful work.
Respondent's appeal of the earlier recommended decision was not adverse action, but refusal to reassign Complainant as ordered and continued harassment was.
A new manager's statement in an introductory meeting announcing new leadership and seeking a "clean slate" created a hostile work environment where, reviewing the entire record, the new manager essentially told employees he would only address issues which arose after his appointment and that employees who held onto the past would do so to their detriment and those who did not like their present assignment should seek another job.

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; REQUIREMENT THAT COMPLAINT FOLLOW AGENCY POLICIES REGARDING COMMUNICATION WITH THE PUBLIC

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), Complainant had used her position as an EPA scientist to voice environmental concerns, mostly about the assumed presence and carcinogenic effects of dioxins, and, after Complainant had improperly revealed the existence of an on going criminal investigation prompted by one of her allegations, the agency added to Complainant's performance standard a requirement that Complainant follow "[a]gency policies concerning communicating with the public."

The ARB held that "[t]he imposition of that requirement, standing alone, does not constitute an adverse action. It reflects a legitimate management prerogative, is not on its face a restriction on protected activity, and has no tangible effect on her employment. As we see it, such a policy does not become an adverse action without a demonstration that the Respondent took punitive action because of the Complainant's protected activity involving public communication."

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; RULING ON GRIEVANCE

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988-SWD-2 (ARB Feb. 28, 2003), Complainant argued that the filing and resolution of a grievance she filed concerning her performance rating should cause the 30 day filing period for an environmental whistleblower complaint to be extended. The ARB held that it was well established that the filing of a grievance does not operate to toll the limitations period for filing a whistleblower complaint. Likewise, the resolution of the grievance could not provide an extension of the filing period, even if the Complainant was dissatisfied with the outcome. Complainant essentially argued that the grievance procedure had not provided the full extent of the relief she had requested ("a unilateral imposition of inadequate remedies"). The ARB found an absence of authority, however, that would render the grievance resolution decision a separate adverse action.

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; RULING BY ALJ ON MOTION

See Slavin v. Office of Administrative Law Judges , 2003 CAA 12 (ALJ Mar. 10, 2003) (ALJ recommended dismissal of complaint alleging that Chief ALJ's order of recusal was an illegal judicial order, finding that as a matter of law, a ruling on a motion could not constitute an adverse employment action).

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; NEGATIVE PERFORMANCE RATING

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB observed that "[N]egative performance ratings alone may not constitute adverse action in some venues where proof of material employment disadvantage is necessary to render a complaint actionable.... " (citations omitted). Where, however, Complainant established that a negative rating was accompanied by monetary deprivation adverse employment action was established.

[Nuclear & Environmental Whistleblower Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; THREATENED TERMINATION FROM EMPLOYMENT

In Kelly v. Lambda Research, Inc. , 2000-ERA-35 (ALJ Apr. 26, 2002), the ALJ recommended a finding that a threatened termination from employment was sufficient to constitute adverse employment action. The ALJ cited in this regard the recommended decision of the ALJ in Graf v. Wackenhut Services, LLC , 1998 ERA 37 (ALJ Dec. 16, 1999), pet. for review withdrawn , ARB Nos. 00 024 and 25 (ARB Feb. 1998).

[Editor's note: The significant point of this ruling is that it does not require a showing of an actual adverse impact on the "terms and conditions" of employment.]

[Nuclear & Environmental Digest XIII B 18]
ADVERSE ACTION

In Jayco v. Ohio Environmental Protection Agency , 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ concluded that, in addition to the primary adverse actions of transfer and a 10-day suspension, Respondent engaged in other adverse employment actions, such as reacting to news media articles and inquiries relating to Complainant's investigation on behalf of Respondent about the cause of high rates of leukemia in an area surrounding a school in a hostile and accusatory fashion which went beyond protected management discretion; not copying Complainant with key memos; and deliberately shutting Complainant out of conference calls and e-mails on subjects relating to Complainant's work.

[Nuclear and Environmental Whistleblower Digest XIII B 18]
PRE-EMPLOYMENT RELEASE THAT INCLUDES PROVISION THAT SUGGESTS WAIVER OF EMPLOYEE PROTECTIONS OF ERA; REQUEST TO SIGN IS A VIOLATION EVEN THOUGH PROVISION WAS UNENFORCEABLE BEFORE DOL

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), the ARB was considering on review an ALJ recommended decision and order on damages issued pursuant to an earlier ARB remand order. In describing the background to the decision, the ARB further explained the rulings on the merits.

The ARB explained that Complainant applied for a job with Respondent. Respondent asked applicants to sign an authorization form for release of records pertaining to prior employment. Complainant, who had been a whistleblower in a prior job at a different nuclear plant, informed one of Respondent's managers of his earlier whistleblowing and objected to certain language in a release form because he viewed it as a waiver of his rights under the ERA. Respondent did not hire Complainant because of his refusal to sign the release as written.

The presiding ALJ had concluded that Complainant had misconstrued the release as jeopardizing whistleblower remedies, and that Respondent had a right to insist that applicants sign the release and to decline to hire those who did not. On review, the Secretary reversed the ALJ, finding that Respondent's refusal to hire Doyle violated the ERA.

In a footnote to its decision on damages, the ARB clarified:

Although the Secretary would not have enforced such a waiver, 1994 Sec'y D&O at 4, merely asking Doyle to sign it was a violation of the ERA's whistleblower provision. See Connecticut Light & Power Co. v. Sec'y of Labor , 85 F.3d 89 (2d Cir. 1996) (employer's proffer of a settlement that would have restricted employee's access to judicial and administrative agencies violated the ERA). Accord Pace v. Kirshenbaum Investments , No. 92-CAA-8, Sec'y Final Order Approving Settlement Agreement, Dec. 2, 1992, slip op. at 1 (waiver of a person's ERA protected rights based on future employer action was contrary to public policy and would not be enforced).

[Nuclear & Environmental Digest XIII B 18]
ADVERSE ACTION

In Moore v. U.S. Dept. of Energy , 1998-CAA-16 (ALJ Feb. 23, 1999), the ALJ recommended summary judgment in favor of Respondent where Complainant's complaint was premised on the contention that certain videotapes constituted a "gag order," but the ALJ, after viewing the tapes, found that a reasonable person could not have concluded that the tapes included remarks that were hostile, threatening, chilling, gagging or adverse. Further, Complainant was not at the meeting at which the tapes were made, having been on leave for several months, and only viewed the tapes on his own initiative.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; OFFER OF RE-EMPLOYMENT DURING SETTLEMENT NEGOTIATION THAT INCLUDED DISCRIMINATORY TERM

In Smyth v. Johnson Controls World, Inc. , 1998-ERA-23 (ALJ Feb. 5, 1999), the ALJ found in his recommended decision that Respondent's presentation to Complainant during a settlement negotiation of an ERA whistleblower complaint, of a letter that significantly restricted the departments within which the Complainant could possibly be re-hired, and impeded his ability to fairly compete for any position for which he was qualified, was itself an act of discrimination under the ERA.

[N/E Digest XIII B 18]
ADVERSE ACTION; MONETARY LOSS NOT REQUIRED; CONSIDERATION OF SPECULATIVE MONETARY LOSS

In Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB Apr. 20, 1998), the ARB held that the ERA protects employees against a broad range of discriminatory adverse actions, including non-monetary losses. Thus, although an associate professor was paid throughout his involuntary leave of absence, he was subjected to adverse employment action by his removal from campus and consequent negative publicity. The ARB wrote that "[d]enying an academician the opportunity to teach and conduct research is a significant and compensable adverse action." Id. @ 5. The ARB also took note of some minor direct monetary loss, such as Complainant's inability to attend a professional meeting where he intended to promote a textbook he was completing, and loss of remuneration for coaching a university-sponsored chess club.

[N/E Digest XIII B 18]
ADVERSE ACTION; RELEVANCE OF COMPLAINANT'S LACK OF MOTIVATION IN SEEKING SUITABLE ALTERNATIVE EMPLOYMENT

In considering whether Respondent engaged in adverse employment action in the way it undertook to find suitable alternative employment for Complainant, the Board in Trimmer v. Los Alamos National Laboratory , 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997), took into consideration Complainant's passive role despite the job coordinator's suggestions that he needed to network and actively seek job leads.

[N/E Digest XIII B 18]
ADVERSE ACTION; NEGATIVE REFERENCES

In Robinson v. Shell Oil Co. , No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers.

[Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint].

ACTIONABLE CLAIM; HIRING FORMER DOL OFFICIAL AS LEGAL CONSULTANT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that Respondent violated whistleblower provisions when it hired the former Director of the Office of Administrative Appeals to act as a legal consultant in this and other cases. Citing Varnadore v. Oak Ridge National Laboratory , 92-CAA-2, slip op. at 61 (ARB June 14, 1996), pet. for review filed , No. 96-3888 (6th Cir. Aug. 13, 1996), the Board held that such a claim is not actionable under the whistleblower provisions. The Board also noted that Complainant's complaints were not pending before the Department while the former Director had been Director. Therefore, the Board granted dismissal for failure to state a claim upon which relief may be granted.

ACTIONABLE COMPLAINT; USE OF MEDICAL RECORDS
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that the whistleblower provisions were violated when Respondent's medical department doctors provided information contained in Complainant's medical files to the company's managers and attorneys. Complainant had requested that Respondent's medical department issue a restriction for her from working with chemical, radioactive, and hazardous substances.

The Board noted that in the state where Complainant worked, patients do not have a privilege for communications with physicians. On the other hand, that state has a statute that entitles an employer to obtain the medical records of a workers' compensation claimant. The Board found that "...to the extent that a physician/patient privilege exists in this case, ... a worker restriction request based on a employee's health is analogous to a workers' compensation claim and ... the employer, through appropriate personnel, is entitled to examine the requesting employee's medical records." Slip op. at 12. Since Complainant did not allege that her medical information was dispensed to persons who did not need to review her work restriction request, she had not stated a claim upon which relief could be granted.

ACTIONABLE COMPLAINT; POSTINGS REQUIRED BY ENVIRONMENTAL ACTS
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that Respondent failed to make adequate postings advising employees about their rights under the employee protection provisions of the environmental acts because the posting contained only the text of the statutory provisions and no explanatory material, they were behind glass, and they were often covered by other materials. Complainant alleged that such posting were adverse to her because they might chill other employees from giving truthful testimony her in case. The Board found that the posting of the text of the employee protection provisions fully comported with Respondent's statutory obligations, and that Complainant had not stated a claim upon which relief could be granted.

ADVERSE ACTION; OFFICE ASSIGNMENT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that she was discriminated against when after a six month disability leave, her old office no longer existed and she was assigned to the office of another worker who was absent on pregnancy leave. The Board found that the office assignment was not discriminatory as a matter of law where Respondent made unrefuted assertions in support of its motion for summary decision that office space was at a premium, that the office provided to Complainant was the only one available, and Complainant's deposition testimony had been that the office "was small, but it was adequate."

ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; ASSIGNMENT OF SUPERVISOR; STATEMENTS ABOUT COMPLAINANT'S FUTURE IN WORK GROUP
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that a hostile work environment was created when she was assigned to work directly for a manager "whose false testimony the ALJ found unbelievable due to [Complainant's] truthful testimony" in the whistleblower case of a co-worker in which the manager and Complainant had been witnesses. Complainant also complained that this manager told her he had no long range plans for her and frustrated a transfer.

Respondent filed a motion for summary decision supported by an affidavit of the manager, and deposition testimony in support of its nondiscriminatory reasons for assigning Complainant to work for the manager. Complainant's only counter was a hearsay declaration of a co-worker indicating that Complainant had told him about a meeting in which the manager said he no longer had a job for Complainant and that she had no future in the division. The co-worker related that Complainant cried for thirty minutes to an hour, and that later he heard the manager say that Complainant was no longer going to be in the work group.

The Board held that this statement, as a matter of law, did not raise a genuine issue of material fact on hostile work environment: the manager's statement merely reflected reality -- Complainant transferred to work in a different group that same summer. The Board found that even if Complainant was upset by the statement, she had failed to provide evidence to support her belief that the statement was part of a hostile work environment.

ADVERSE ACTION; MEDICAL DEPARTMENT'S FAILURE TO ISSUE WORK RESTRICTION DOCUMENT
[N/E Digest XIII B 18]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), Complainant alleged that she was discriminated against by the absence of a response from the medical department to her request to be restricted from working with chemical, radioactive, and hazardous substances. In a motion for summary decision, Respondent presented a deposition of Complainant's superior, who stated that the division had already determined that Complainant would not be given any kind of work potentially exposing her to toxic materials or unsafe levels of radiation; moreover, following a transfer, the superior took pains to assure Complainant that the new job would not involve any such exposures.

In opposing the motion, Complainant's sole evidence was the declaration of a co-worker that he had received a medical declaration following sustaining a broken jaw in a traffic accident several years earlier. The Board, assuming the truth of the declaration, found that the issuance of medical declarations of a temporary nature were dissimilar to a request for a medical declaration of a permanent nature, and that the declaration did not raise an issue of material fact. The Board found Respondent entitled to judgment as a matter of law because the company had acted to remove Complainant from exposures even without a medical department restriction.

Complainant alleged in a second complaint (involving only the environmental whistleblower statutes) that Respondent's continued lack of a medical department response to her request for a work restriction was a violation. The Board found this "splitting hairs of no legal consequence" in view of the fact that Respondent did take other action in response to her request. Moreover, the Board noted that Complainant was on disability leave during the thirty days preceding the filing of the second complaint -- therefore, Respondent could not have required her to work with the feared substances at any time during that period. Thus, the Board found that the second complaint failed to prove any set of facts that the absence of a medical department response violated the whistleblower provisions of the environmental acts.

ADVERSE ACTION; RELEVANCE OF TESTIMONY ON RESPONDENT'S CAPACITY FOR SURVEILLANCE
[N/E Digest XIII B 18]

Surveillance of employees, or the creation of an impression of surveillance, for the purpose of monitoring participation in protected activity would be a violation of the ERA's prohibition on interference, or action intended to interfere, with the exercise of protected activity. See 42 U.S.C. § 5851(a).

A witness' mere speculation that management is conducting surveillance, however, does not create such a reasonable perception of surveillance by the complainant that the ALJ must hear testimony regarding the technical potential for such surveillance.

Respondent posted a sign at the facility entrance stating that "For your protection, this facility is electronically monitored by video surveillance." Complainant argued that the sign failed to indicate that Respondent would refrain from subjecting employees to surveillance relative to protected activity. The Board noted that Complainant's argument was misplaced because the burden of proof is on Complainant.

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

ADVERSE ACTION; COMMENT ABOUT POOR PERFORMANCE; CONSTRUCTIVE DISCHARGE OR THREAT OF RETALIATORY REPRISAL
[N/E Digest XIII B 18]

In Mosley v. Carolina Power & Light Co . , 94-ERA-23 (ARB Aug. 23, 1996), the manager of the nuclear power plant at which Complainant was working as a contract employee conducted an investigation into charges made by Complainant of racial discrimination and discriminatory assignments. Complainant asserted that his charges included charges of paperwork and plant violations, but the ARB declined to overturn the ALJ's finding that such charges had not been made. The manager, however, was aware of Complainant's complaint about a NRC requirement to keep radiation exposure as low as reasonably achievable. The manager found that a racial slur had been directed at Complainant and reprimanded that employee; however, the manager also found that other allegations could not be substantiated. In his "Note to File" the manager wrote that he had discussed with Complainant "That I had discovered a history of poor performance and that this would be 'dealt with' by his PPM management...." Complainant apparently then requested a reduction of force discharge.

The Board found that the "dealt with" language was not a threat of firing or reprisal; rather the manager was merely communicating that the contractor was responsible for dealing with performance issues. The Board also found that even if the manager's remarks could be viewed as threatening, they were not sufficient to support a constructive discharge. The Board wrote:

To establish a constructive discharge, the employee must show that working conditions were rendered so difficult, unpleasant, unattractive or unsafe that a reasonable person would have felt compelled to resign. ... It is insufficient that the employee simply feels that the quality of his work has been unfairly criticized. Furthermore, when an employee's performance is poor, "an employer's communication of the risks [of discipline for that poor performance] does not spoil the employee's decision to avoid those risks by quitting." Henn v. National Geographic Society , 819 F.2d 824, 829-30 (7th Cir. 1987, cert. denied , 484 U.S. 964 (1987).

Slip op. at 7 (some citations omitted).

ADVERSE EMPLOYMENT ACTION; REMARKS ABOUT STATUS OF CASE
[N/E Digest XIII B 18]

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 affirmed the ALJ's recommendation of summary decision concerning the Complainant's complaint that the Complainant's former Division Director had discussed the status of a pending whistleblower complaint at a staff meeting. The Respondent had submitted an affidavit from the Division Director in which he indicated that in response to a question he only stated that briefs had been submitted, a decision was expected in approximately one month, and that the decision would ultimately be made on review by the Secretary of Labor.

The Complainant's response to this affidavit consisted solely of argument, and no supporting affidavits or other evidentiary support. The Board observed that a "non-moving party may not defend against a motion for summary judgment with 'mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.'" Slip op. at 18, quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986). The Board also held that "it would be preposterous to conclude that a reference by [the Division Director] to the status of [the pending whistleblower complaint] constitutes retaliatory adverse action". The Board noted in this regard the ALJ's finding that the Complainant was not working in this division, did not attend the meeting, and did not suffer any adverse employment status or work environment as a result of the remark. Slip op. at 18-19.

ADVERSE EMPLOYMENT ACTION; PRESS RELEASE
[N/E Digest XIII B 18]

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), one Respondent issued a press release following the ALJ's issuance of a recommended decision regarding Complainant's original complaint. The press release characterized the award as modest, noted disagreement with the ALJ's finding of retaliation, expressed an intent to address the matter with the Secretary of Labor, and noted that the Secretary issues the final order. The Complainant characterized the press release as "callous and remorseless", with a "retaliatory and condescending statement that the award was 'modest.'" The Board agreed with the ALJ that reference to a "modest" award was not retaliatory where the recommended award was $30,000, but the Complainant had sought $11 million. The Board noted that it was more important that the press release caused the Complainant no tangible job detriment nor did it contribute to creation of a hostile work environment. The Board quoted, inter alia , the ALJ's observation that the press release "was not physically threatening, humiliating, or even an offensive utterance." Slip op. at 20, quoting Varnadore v. Oak Ridge National Laboratory , 94-CAA-3, slip op. at 9 (ALJ Apr. 28, 1994)("Varnadore II").

ADVERSE EMPLOYMENT ACTION; LITIGATION TACTICS; OFFER OF SETTLEMENT WITH GAG PROVISION
[N/E Digest XIII B 18]

The Second Circuit in The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor , No. 95-4094 (2d Cir. May 31, 1996)(available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), affirmed the Secretary's holding that proffering a settlement agreement containing a provision that attempts to restrict an employee's ability to cooperate with administrative and judicial bodies violates section 210 of the ERA. The court observed that "[a]lthough the act of inducing an employee to relinquish his rights as provided by the ERA through means of a settlement agreement is less obvious than more direct action, such as termination, it is certainly aimed at the same objective: keeping an employee quiet." 1996 U.S. App. LEXIS at *17.

ADVERSE EMPLOYMENT ACTION; PSYCHOLOGICAL EVALUATION
[N/E Digest XIII B 18]

In Diaz-Robainas v. Florida Power & Light Co. , 92-ERA-10 (Sec'y Apr. 15, 1996)(order denying motion for reconsideration), the Secretary reaffirmed his holding in Diaz-Robainas v. Florida Power & Light Co. , 92-ERA-10 (Sec'y Jan. 19, 1996), that making a psychological evaluation a condition of continued employment constitutes adverse employment action. The Respondent, in a motion for reconsideration, maintained that only "ultimate" actions taken by an employer may constitute actionable adverse action, or at least that a psychological evaluation order must lead to discharge or further adverse action.

The Respondent cited Page v. Bolger , 645 F.2d 227 (4th Cir. 1981), cert. denied , 454 U.S. 892 (1981), for the proposition that only ultimate action may constitute an actionable adverse action. The Secretary, however, held that Page 's discussion of ultimate and mediate employment decisions was merely a criticism of the plaintiff's attempt to shift the focus of the pretext analysis from the reasons for his failure to be promoted to the reasons for the absence of any black members on the promotion review committee -- a personnel action that neither affected Page directly nor constituted the employment action initially or ultimately challenged by Page. The Secretary also observed that Page was a Title VII action.

The Secretary held that actionable discrimination is not limited to economic harm. The Secretary also observed that merely potential adverse affects are actionable, such as an adverse work evaluation that has the potential to harm a complainant's chances for job security or advancement.

The Respondent also maintained that the Secretary's holding was contrary to Mandreger v. Detroit Edison Co. , 88-ERA-17 (Sec'y Mar. 30, 1994), and several federal court decisions. The Secretary, however, distinguished those cases on their facts, several on the ground that the employee had been shown to have exhibited aberrant behavior in the workplace -- in effect, failing thereby to meet the ultimate burden to prove that the referral was a retaliatory adverse action. In contrast, in Diaz-Robainas , the record did not substantiate that the Complainant engaged in abnormal or aberrant behavior suggestive of any risk to public safety and health. The Secretary observed that lack of observed abnormal or aberrant behavior in Diaz-Robainas meant that the decision did not undermine the employer's duty to participate in the NRC's behavioral observation program and to refer or remove an employee whose fitness it questions. See 10 C.F.R. § 26.27(b)(1).

ADVERSE EMPLOYMENT ACTION; DISCRETIONARY ORDER TO SUBMIT TO PSYCHOLOGICAL EVALUATION
[N/E Digest XIII B 18]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary noted that federal courts have treated discretionary orders to submit to psychological evaluations as adverse employment actions. In Diaz-Robainas the Secretary found that NRC regulations requiring a licensee to provide reasonable assurance that its employees are not mentally or physically impaired in such a way as to adversely affect their ability to safely and competently perform their duties, see 10 C.F.R. §§ 26.10(a), 26.20(a), do not prevent a power company from abusing a company policy concerning psychological testing, nor does it preclude a Complainant from alleging that a testing order was retaliatory under the ERA. The Secretary also found that the fact that the Complainant could have appealed the results of the evaluation internally did not preclude the ERA complaint.

The Secretary emphasized that a refusal to submit to a psychological evaluation is distinct from instances in which the employee refuses to work. The Secretary's decision indicates that where the complainant is able to establish that the initial order to submit to psychological evaluation was based on retaliatory discrimination under the ERA, then a subsequent discharge for the refusal to submit to the evaluation is also a violation of the ERA.

The Secretary noted in this regard that he is not persuaded by certain caselaw dealing with employees' contractual rights under collective bargaining agreements.

XIII B 18 ADVERSE ACTION; BEHAVIOR OF SUPERVISOR AT EETING

In Marien v. Northeast Nuclear Energy Co, 93-ERA-49 and 50 (Sec'y Sept. 18, 1995), there was evidence that Complainants' supervisor raised his voice and may have become red-faced during a meeting in which the Complainants questioned the validity of a computer program being tested in relation to the power plant's fitness for duty program. Of the participants at the meeting, however, only the Complainants testified that they heard the supervisor make a negative statement about the Complainants going to outside sources. The Secretary held that the supervisor's demeanor did not demonstrate that Respondents retaliated against Complainants because of their protected activity. The Secretary also found it significant that the Complainants did not suffer any other forms of retaliation, such as reassignment, loss of pay, adverse performance evaluation, or denial of vacation.

[N/E Digest XIII B 18]
SETTLEMENTS; TOUGH NEGOTIATING AS EVIDENCE OF RETALIATION

In Ruud v. Westinghouse Hanford Co. , 88-ERA-33 (ARB Nov. 10, 1997), the ALJ had rejected Complainant's argument that Respondent failed to deal in good faith when negotiating the settlement, concluding that"tough negotiating does not equal bad faith retaliation". The ARB "disagree[d] to the extent that [Respondent] premised negotiations on [an] unlawful "gag" provision which violated public policy and constituted adverse action." Ruud , 88-ERA-33 @ 16 (citation omitted).

[N/E Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; BREACH OF SETTLEMENT AGREEMENT

Breach of a settlement agreement can constitute a violation of the nuclear and environmental whistleblower statutes. Ruud v. Westinghouse Hanford Co. , 88-ERA-33 (ARB Nov. 10, 1997), citing Gillilan v. Tennessee Valley Authority , 91-ERA-31/34, slip op. at 9 (Sec'y Aug. 28, 1995); Blanch v. Northeast Nuclear Energy Co. , 90-ERA-11, slip op. at 4 (Sec'y May 11, 1994); O'Sullivan v. Northeast Nuclear Energy Co. , 90-ERA-35, slip op. at 3 (Sec'y Dec. 10, 1990).

XIII B 18 ADVERSE ACTION; EMPLOYMENT OF CONSULTANT ALLEGEDLY IN CONFLICT WITH ETHICS REGULATIONS

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that the former Director of the Office of Administrative Appeals is violating ethics regulations by acting as a consultant to one of the Respondents. The ALJ recommended holding that, even assuming there was subject matter jurisdiction, the Complainant had failed to establish how such employment constituted a discriminatory or retaliatory act against the Complainant.

XIII B 18 ADVERSE ACTION; DOE'S FUNDING OF CONTRACTOR'S LITIGATION EXPENSES

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the ALJ recommended dismissal of a complaint of the allegedly wrongful funding of contractor litigation by the DOE because the Complainant failed to articulate how DOE's funding policies adversely affected his employment with the contractor.

XIII B xviii Surveillance of employees not per se discriminatory

In Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995), the Secretary declined to establish a per se rule that covert employer surveillance of employees engaged in protected activities is "inherently discriminatory" and proof in and of itself of illegal motive. In Scott , the Secretary found that the Respondent had a legitimate business reason to investigate leaks of its documents, and the record did not show that it intended to use a surveillance to intimidate its employees from making safety or health complaints.

XIII B 18 Adverse action; forced return from medical leave

Adverse employment action includes imposition of a requirement that the Complainant return from medical leave or be considered to have abandoned his position when no other employee faced such an option. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995).

XIII B 18 Privilege of employment; training and education

Training and educational programs that advance an employee in his or her career or enable him or her to perform work more efficiently are a privilege of employment. Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995).

XIII B 18 Requiring Complainant to retake an examination

Where the Complainant was treated like all other electricians in having to retake a Nuclear Accreditation Bonus examination (which makes an electrician eligible for a monthly bonus), and he passed the examination and receives the bonus, the Secretary found that requiring the Complainant to retake the examination was not an adverse action. Although the Complainant complained that he was disadvantaged because a mechanical instructor administered his exam, whereas an electrical instructor administered the exam to his coworkers -- which allegedly put him at a disadvantage if he needed an explanation of a test question -- the Secretary noted that the Complainant was on sick leave the day the other workers took the exam. Moody v. Tennessee Valley Authority, 91-ERA-40 and 92-ERA-49 (Sec'y Apr. 26, 1995).

XIII B 18 Coercion to rescind safety complaint

Intimidation and coercion brought to bear on a Complainant to rescind a health or safety complaint constitutes adverse employment action. Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 13.

XIII B 18 Conditioning settlement on gag provision

In Delcore v. W.J. Barney Corp., 89-ERA-38 (Sec'y Apr. 19, 1995), the Secretary found the Respondents in violation the whistleblower provision of the ERA while negotiating settlement of a court action filed against them by the Complainant. Specifically, the Respondents offered the Complainant a monetary settlement in exchange for his agreement to restrict his participation in future regulatory proceedings, and broke off negotiations when the Complainant refused to agree to the restriction. The Secretary pointed out that the circumstances giving rise to this complaint were no longer prevalent in the light of intervening regulation by the NRC. See 10 C.F.R. § 50.7(f)(1994).

XIII B 18 Refusal to create position to match duties and responsibilities

In Gomez v. University of Puerto Rico Medical Science Campus, 89-ERA-43 (Sec'y Apr. 20, 1995), the Complainant established that for many years he performed the function of radiation safety officer, but was never given that title in any formal way; he requested on several occasions that the Respondent create a radiation safety officer position and formally place him in it; later, he wrote a letter to the Respondent stating that, as it was clear that they were not going to create a radiation safety officer position, he was "obliged to resign" from his functions in that regard although he would continue to work in his capacity as an Assistant Medical Radiations Physicist. Ten days later he complained to the NRC about radiation protection standards on the Respondent's campus.

The Secretary held that the Complainant failed to prove that the Respondent had taken any kind of retaliatory action against him following the complaint.

XIII B 18 Interference with prospective employment opportunities

An employer's interference with a former employee's prospective employment opportunities constitutes adverse action. Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995).

XIII.B.18. Constructive discharge

Giving an employee the option of resigning or being fired is a constructive discharge and is adverse employment action. Kahn v. Commonwealth Edison Co., 92-ERA-58 (Sec'y Oct. 3, 1994).

XIII. B. 18. Specific actions: other actions

Adverse action includes a denial of a promotion, and the suspension of test certifications, which required the Complainant to undergo a demeaning recertification process. Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993).

XIII. B. 18. Specific actions: other actions

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the ALJ discussed two memoranda that were not aimed at the Complainant specifically, but which he interpreted as discouraging free contact with the NRC. The ALJ ordered Respondent to issue corrective memoranda.

The Secretary, however, found that since the Complainant was not discouraged from raising her safety complaints on the basis of those memoranda, there was no evidence they affected her adversely, and therefore, she did not establish a prima facie case that issuing the memoranda violated the ERA.

13 B 18 Determination whether resignation was in fact a constructive discharge

Where a complainant is faced with a transfer, and quits, it is important to determine whether he or she was constructively discharged, because if not, he or she would not be eligible for postresignation damages and pay or for an opportunity for reinstatement. Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir. 1986).

Adverse consequences flowing from a violative employment decision generally are insufficient to substantiate a finding of constructive discharge. The presence of "aggravating factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981). Whether a constructive discharge has occurred depends on whether working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign. Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-888 (3d Cir. 1984).

Circumstances held sufficient to render resignation involuntary include a pattern of discriminatory treatment and "locking" an employee into a position from which no relief seemingly can be obtained. Clark v. Marsh, 655 F.2d at 1174; Satterwhite v. Smith, 744 F.2d at 1382-1383. Transfer from a supervisory position to a "dead-end position requiring [the employee] to do virtually nothing was a form of enforced idleness both humiliating and detrimental." Hopkins v. Price Waterhouse, 825 F2d 458, 473 (D.C. Cir. 1987), rev'd on other grounds, 109 S. Ct. 1775 (1989) (constructive discharge occurred where employee subjected to what any reasonable senior manager in her position would have viewed as "career-ending action"). [additional citations omitted].

The Secretary addressed the doctrine of constructive discharge in Perez v. Guthmiller Trucking Co., Inc., 87-STA-13 (Sec'y Dec. 7, 1988), slip op. at 24-27; Taylor v. Hampton Recreation and Hampton Manpower Services, 82-CETA-198 (Sec'y Apr. 24, 1987), slip op. at 7-9; Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), slip op. at 8-9, employing in those cases an objective standard adopted under antidiscrimination legislation. See Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453, 461-463 and nn.8, 9 (D.C. Cir. 1988).

In Taylor v. Hampton Recreation, the Secretary concluded that the employee's resignation was coerced where he had endured a pattern of abuse by his immediate supervisor, the supervisor repeatedly had refused to provide him with guaranteed job training, the confrontations and threats of imminent discharge adversely affected the employee's health, and top management had manifested insensitivity and a marked lack of response to the employee's grievances and requests for assistance.
"A reasonable person would certainly resign employment after being ordered to leave." Welch v. University of Tex & Its Marine Science, 659 F.2d 531, 534 (5th Cir. 1981).

In Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991), the Secretary found constructive discharge based on the following aggravating factors:

the Complainants made repeated attempts to elicit responsible action by the Respondent;
the Respondent instituted a program of inadequate response to the Complainants' concerns;
the Respondent ultimately attempted to force upon the Complainants a wholly unacceptable transfer "solution" [this solution was to transfer the Complainants to another facility, away from a asserted PCB leakage problem, but with a resulting adverse impact on wages and certain working conditions]
the Complainants were not given the option of continued employment in their present posts, and would have been subject to arrest had they remained

XIII.B.18. Denial of plant access

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Complainant maintained that the Respondent violated the CAA, the ERA and the SWDA when it denied him access to its nuclear facility. The denial of access prevented the Complainant from working as an independent contractor at the facility.

XIII.B.18. Continuation of maintenance of unfair performance evaluation

In Varnadore v. Martin Marietta Energy Systems, Inc., 94-CAA-2 (ALJ Oct. 17, 1994), the ALJ recommended that the Respondent expunge from the Complainant's employment records the written appraisal of his performance for the fiscal year during which a highly disruptive whistleblower complaint was being litigated before another ALJ. The appraisal had been completed by the two supervisors most centrally associated with the earlier complaint, and although the ALJ believed that they attempted to prepare an objective report, given the emotionally charged atmosphere, did not believe that those persons could have given an impartial evaluation. Thus, the ALJ concluded that its fairness was suspect, and the continuation of it in the Complainant's personnel file was unfair and prejudicial.

XIII B 18 Adverse action; other actions

XIII B 18 Removal of unescorted site access

Removal of unescorted site access of a contract worker is an effective discharge, and is an adverse employment action. Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994).

XIII.B.18. Suspension; drug and alcohol urine testing

XIII. B. 18. Specific actions: other actions

[Nuclear and Environmental Whistleblower Digest XIII B 18]
ADVERSE ACTION; EMPLOYER CANNOT BE HELD LIABLE UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS FOR NOT REINSTATING A COMPLAINANT PURSUANT TO AN EARLIER ALJ RECOMMENDED DECISION WHERE THAT EARLIER DECISION IS ON APPEAL

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the ALJ had issued a recommended decision in an earlier proceeding involving the same Complainant and Respondent ordering the Respondent to restore the Complainant to a contract specialist position. The Respondent appealed. In the meantime, the Complainant applied for two contract specialists positions, but was not placed on the list of certified eligible candidates because she did not have a college transcript as required by the position announcement.

The instant complaint was based, in part, on the Complainant's allegation that the Respondent refused to place her in a contract specialist position because of her protected activity. The ALJ found no evidence of intentional discrimination based on protected activity and that the Complainant had been treated like any other applicant. However, the ALJ went on to find that if the Respondent had restored the Complainant to a contracting position as he had ordered in the earlier recommended decision, it would not have been necessary for the Complainant to supply a college transcript to be placed on a certified list of eligibles, and that by excluding her, the Respondent had perpetuated and continued the discrimination as found in the earlier proceeding.

The ARB found the ALJ's conclusion to be grossly contrary to law because an ALJ's recommended environmental whistleblower decision that is timely appealed to the ARB has no legal force or effect.

[Nuclear and Environment Digest XIII C]
HOSTILE WORK ENVIRONMENT; TAPE RECORDINGS REFLECTING ACTUAL WORDS AND ATMOSPHERE OF MEETINGS

In Patrickson v. USDOL , No. 07-4574 (Dec. 18, 2008) (unpublished) (case below ARB Nos. 05-069, 05-070, ALJ No. 2003-ERA-22), the Petitioner ("Complainant") argued on appeal that the ARB's rejection of certain ALJ credibility assessments detracted from the weight of evidence underpinning the ARB's determination. The ALJ had determined, relying largely on the Complainant's testimony, that bi-weekly meetings that the Complainant had been required to attend were sufficiently hostile to constitute adverse employment actions. The ARB found to the contrary, having listened to recordings of those meetings made by the Complainant, which the ALJ had apparently not done. The Second Circuit found that the ARB's assessment of the actual words and atmosphere of the meetings reasonably permitted it to conclude that they were not sufficiently hostile to demonstrate an adverse employment action. The court also found that the ARB's finding that the Complainant had failed to establish pretext was supported by substantial evidence notwithstanding the ALJ's contrary credibility assessments � notably testimony from a manager regarding numerous deficiencies in the Complainant's performance, and the institution of a performance-improvement plan prior to receipt of notice of the Complainant's protected activity.

[Nuclear and Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT CLAIM FAILS WHERE ALLEGED HARASSMENT WAS FOUND NOT TO BE ADVERSE OR HAD BEEN TAKEN BECAUSE OF LEGITIMATE NON-DISCRIMINATORY REASONS

In Lewis v. United States Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB June 30, 2008), the ARB granted reconsideration where the Complainant was able to identify where in the record he had made a hostile work environment claim (the ARB noting that it was in a different document than originally stated). Upon review, however, the ARB found that the hostile work environment claim failed because the Complainant did not prove by a preponderance of the evidence that the Respondent harassed him because of his protected conduct. The ARB observed that the ALJ had found that the Respondent's actions had either not been adverse, or had been taken for legitimate, non-discriminatory reasons.

[Nuclear and Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT; EMPLOYER MAY AVOID LIABIILITY WHERE IT TAKES ACTION REASONABLY CALCULATED TO END THE HARASSMENT

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB found that the record supported the ALJ's finding that a hostile work environment ("HWE") existed at the Respondent's facility, but that the Respondent was not liable for that situation. The Complainant had been reinstated after winning an earlier ERA whistleblower complaint. The Complainant was subjected to intentional harassment, such as anonymous telephone calls and messages, anonymous notes (such as "Silkwood," "BOO," and "STOP IT NOW"), a sarcastic comment from a supervisor, and a fake bomb placed in the back of his truck. The ARB found that this harassment altered the terms of employment and created an abusive work environment, and that it would have affected a reasonable whistleblower in the Complainant's circumstances and that it did detrimentally affect him. Although the Complainant did not directly prove that TVA employees harassed him, most of the incidents having involved anonymous perpetrators, the ARB inferred from the circumstances that TVA employees were responsible. The ARB then turned to whether the Respondent had adequately responded to the HWE, writing:

�TVA will be liable for its employees' harassing conduct if it knew, or in the exercise of reasonable care should have known, of the harassment and failed to take prompt remedial action. To avoid liability, TVA must take both preventive and remedial measures to address workplace harassment. Once TVA knew about the harassment, the question becomes whether it addressed the problem adequately and effectively.

USDOL/OALJ Reporter at 19 (footnotes omitted). The ARB agreed with the ALJ that the Respondent had taken extensive steps to protect the Complainant from harassment before he returned to the facility and also acted promptly and appropriately to deal with both off-site and on-site harassment reported by the Complainant. The ARB wrote:

[U]nder our precedent, TVA is not liable for a HWE claim if it addresses the harassment adequately and effectively. Addressing harassment adequately and effectively means taking action reasonably calculated to end the harassment. The employer is not required to achieve a result, only to take action. Here, though the harassment did not completely end, TVA was never indifferent to Overall's complaints. Rather, it took action reasonably calculated to end the harassment. Therefore, we find that TVA adequately and effectively addressed the harassment. As a result, it is not liable for the HWE.

USDOL/OALJ Reporter at 20-21 (footnotes omitted). The ARB rejected the Complainant's contention that under Pennsylvania State Police v. Suders , 542 U.S. 129 (2004), TVA would be strictly liable for the HWE because in Suders , unlike the instant case where the Complainant did not resign, the plaintiff had established that he had been constructively discharged, and because in Suders , unlike the instant case, the plaintiff's supervisors had been responsible for the HWE. The ARB also rejected the Complainant's contention that the Respondent's response to the HWE had been motivated solely by public relations concerns, and was incompetent and deliberately inept. The ARB found no evidence of record to support these sweeping contentions. Finally, the ARB rejected the Complainant's reliance on Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ Nos. 1997-CA�9, slip op. at 23 (ARB Feb. 29, 2000), where the Board wrote, "In light of Berkman's notice to superiors about instances of harassment, and the superiors' failure to remedy the harassment, we find that the [employer] has respondeat superior liability for those harassing actions." The ARB distinguished Berkman because in that case supervisors took little, if any, action when the Complainant complained to them about the way he was being treated.

[Nuclear and Environmental Whistleblower Digest XIII C]
ADVERSE ACTION; DISTINCTION BETWEEN A CONTINUING VIOLATION AND A HOSTILE WORK ENVIRONMENT THEORY

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant on appeal argued that the ALJ had ignored his "hostile work environment" argument. The ARB carefully reviewed the record and found no allegation, statement or testimony asserting a hostile work environment claim. Rather, the ARB found that the Complainant had made a "continuing pattern" of discrimination argument. The ARB, therefore declined to consider the hostile work environment claim on appeal. In so ruling, the ARB described the difference between a hostile work environment and continuing violation case:

But the "continuing violation doctrine" is not the same as the hostile work environment theory of liability. Until the U.S. Supreme Court held otherwise in [ Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 114-15 (2002)], the "continuing violation doctrine" allowed a plaintiff to recover for discrete adverse actions that occurred outside of the limitations period if he could prove that these claims were "sufficiently related" to an adverse act that did occur within the limitations period. Hostile work environment claims, however, differ from claims involving discrete acts. Hostile work claims involve repeated harassment occurring over a period of time rather than adverse action that occurs on a particular day.

Lewis , supra , USDOL/OALJ Reporter at 23 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XIII C]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE NO LONGER VIABLE

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the ALJ erred in applying the "continuing violation" doctrine to find that the Complainant had made a timely complaint alleging that the EPA had engaged in adverse employment action when it failed to follow its internal peer review process for granting permission to its scientists to publish research papers. Rather, the ARB found applicable the "discrete action" standard from Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 114-15 (2002). Thus, because the Complainant knew more than two months prior to filing of his environmental whistleblower complaint that a scientist well-known to advocate a position different from that of the Complainant in regard to the subject of the paper (whether sludge fertilization presents public health risks) had inappropriately participated in the peer review, and the applicable limitations period was only 30 days, the complaint was untimely.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT CLAIM DOES NOT REQUIRE THAT ANY SINGLE ACT OR SUBSET OF ACTS BE SEVERE AND PERVASIVE, BUT ONLY THAT THE ACTS COLLECTIVELY BE SEVERE AND PERVASIVE

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the Complainant alleged that false and unfounded criticisms by her supervisor contributed to a hostile work environment. The ALJ found that the criticisms had not been severe and pervasive enough to alter the Complainant's terms and conditions of employment and therefore was not harassment. The ARB first corrected an error by the ALJ:

Hostile work environment liability does not require that any single act of harassment or some subset of harassing acts be severe and pervasive enough to alter the complainant's terms and conditions of employment. Thus, the ALJ erred in finding that that a subset of circumstances that allegedly contributed to a multi-factor hostile work environment must themselves be severe and pervasive.

USDOL/OALJ Reporter at 22 (footnote omitted). The ARB, however, affirmed the ALJ's ultimate finding that the criticisms did not contribute to a hostile work environment because the Complainant had not proved that she had been harassed. First, the Complainant claimed that she was harassed when her supervisor "falsely criticized" her for accusing another employee of unlawfully recommending that the Respondent purchase a particular software program. The Board held that "a supervisor's oral rebuke to an employee for impugning a co-worker's judgment or honesty does not constitute harassment." Id . at 23. Second, the Complainant claimed that the manager harassed her by inconsistently criticizing her work as too detailed and not detailed enough. The Board rejected this claim because the Complainant failed to point to any evidence of record to support the assertion. The Board held that the Complainant's third allegation of harassment was frivolous: the manager first asked "Are you sure?" when the Complainant had delivered information to him � but then accepted her word.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; IMPOSSIBLE-TO-PERFORM TASKS

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the ARB recognized that giving an employee impossible-to-perform work assignments can contribute to an abusive work environment. The Board quoted Vicki Schultz, Reconceptualizing Sexual Harassment , 107 Yale L.J. 1687, 1764 (1998), cited with approval in Durham Life Ins. Co. v. Evans , 166 F.3d 139, 149 (3d Cir. 1999):

[T]here are diverse ways of subverting a [victim's] perceived or actual competence. Sometimes it takes the form of deliberate sabotage of a [victim's] work performance, such as . . . simply assigning her tasks that are impossible to accomplish.

In Erickson , however, the Complainant failed to establish by a preponderance of the evidence that the assignments at issue were impossible tasks, and therefore failed to prove that her supervisors intentionally harassed her. The ARB found that the impossibility claim had depended in large part on the Complainant's "own over-broad definition of her role [as a project officer] in the ... process [for approving invoices]."

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; "IDLING"; COMPLAINANT'S DECLINATION OF EMPLOYER'S OFFER TO ASSIGN MORE DUTIES

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the Complainant claimed that she had been subjected to a hostile work environment based in part on "idling," i.e., being left without work to do 50 to 75% of the time. The present case was a follow-up to an earlier whistleblower hearing in which the Complainant had testified that she did not have enough work to do. After that hearing, the Complainant's supervisor offered to give her more work to do and expand her position description accordingly, but the Complainant refused this offer. Then, after the ALJ issued a decision in the earlier case finding that EPA had underutilized the Complainant, the supervisor again offered to add to her duties and change her position description. Upon this offer, the Complainant declared that asking her to do any work other than contracting work (the ALJ having ordered her reinstated as a contract officer from her current position as a project manager) would still amount to unlawful "idling." The ARB held that "given the efforts EPA made to accommodate her, we find that EPA did not idle Erickson." The ARB also found that the Complainant failed to prove that she was idle 50 to 75% of the time -- that, in fact, the Complainant "either made herself unavailable for work or was busy."

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; EVIDENCE THAT ONLY ESTABLISHES COMPLAINANT'S SUBJECTIVE REACTION TO MANAGER'S PEP TALK IS INSUFFICIENT

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM a new manager gave a "pep" talk to employees upon his arrival, and said something to the effect that the office need to start with a clean slate and rally as a team. The Complainant -- who at that point had pursued a number of whistleblower complaints against her Employer -- testified that she asked the new manager about how he was going to give people confidence that things have changed and that employees would not be retaliated against for raising issues with managers. The manager's answer and his responses to other employee's questions led the Complainant to conclude that the new manager was threatening retaliation for refusing to abandon prior discriminatory charges. The ALJ agreed with the Complainant and found that the new manager's remarks had created a hostile work environment. The ARB reversed, finding that the record did not evidence anything more than a speech new managers typically give, and did not show an intent to harass. The ARB wrote that even more importantly, the Complainant failed to establish that the new manager knew anything about her whistleblowing activities, or any other employee's whistleblowing activities when he gave the remarks. Nor did the Complainant establish that the remarks had detrimentally affected her. Rather, her skepticism about his statement and feeling that he could not be trusted were all she had shown.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; MONITORING OF COMPLAINANT'S WORK ATTENDANCE

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the Complainant argued that she had been subjected to "disparate surveillance" of her attendance. Both the ALJ and ARB rejected this argument: "[L]ike the ALJ, we conclude that looking for an employee during official duty hours, leaving notes on the door of her empty office, and asking her where she was during extended absences is not harassment."

[Nuclear and Environmental Digest XIII C]
ADVERSE ACTION; TRANSFER IS NOT A CONTINUING VIOLATION

In Shirani v. USDOL , No. 05-4455 (7th Cir. June 28, 2006) (unpublished) (case below 2002-ERA-28), the Complainant had taken a job with the Respondent's business services area during a business reorganization prompted by a merger. The Complainant argued that the Respondent's refusal to grant his requests to be returned to the nuclear section "was not one discrete act; it took place over a period of time, in fact, on each day until he was given notice he was going to be let go." The Complainant cited Place v. Abbott Labs , 215 F.3d 803, 808 (7th Cir. 2000), in support of his theory that this was a continuing violation. The court rejected this argument, noting that Place involved sexual harassment, and that a job transfer is quite different. It is a single, significant event and not a continuing act.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; STANDARD IS "SUFFICIENTLY SEVERE OR PERVASIVE" RATHER THAN "EXTREMELY SERIOUS OR SERIOUS AND PERVASIVE"

In Belt v. USDOL , Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Sixth Circuit indicated that the ARB misstated, in a potentially material way, the legal standard for assessing the applicability of the hostile work environment exception to the running of the ERA statute of limitations, when it stated: "To prevail on a hostile work environment claim, the complainant must establish that the objectionable conduct was extremely serious or serious and pervasive ." Slip op. at 11, quoting ARB slip op. at 8 (emphasis as added the court). The court, however, found that later in the opinion the ARB correctly stated the standard as only requiring that the Complainant demonstrate that the alleged discrimination was " sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Id . (emphasis as added by the court). The court held that, on balance, it was clear that the ARB applied the correct standard despite its initial misstatement.

[Editor's note: The ARB accepted this distinction in Brune v. Horizon Air Industries, Inc. , ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006).]

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; EVIDENCE OF A "CHILLED ENVIRONMENT" IS NOT, BY ITSELF, SUFFICIENT PROOF

In Belt v. USDOL , Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Complainant argued that the ARB erred in holding that the hostile work environment exception to the ERA statute of limitations was not applicable "where the NRC had substantiated a �chilled environment' for the reporting of safety violations at the facility at which he worked." The court stated that assuming that a chilled environment in fact had existed by the Respondent's facility, the existence of such is not, by itself, enough to establish that the Complainant was exposed to a hostile work environment.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT THAT DID NOT CULMINATE IN UNFAVORABLE PERSONNEL ACTION SUPPORTS CAUSE OF ACTION UNDER ERA WHISTLEBLOWER PROVISION

In Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004) ) (available at 2004 WL 1440554) (case below ARB No. 98-030, ALJ No. 1997-ERA-14), the Fifth Circuit, noting an apparent inconsistency between general caselaw and the statutory text of the ERA, invited the parties to brief the issue of whether a hostile work environment that does not culminate in unfavorable personnel action can support a claim under the ERA whistleblower provision. The parties declined, appearing to agree that such claims are cognizable. The 5th Circuit, recognizing that the ARB and the 4th Circuit has recognized such claims while no authority had denied them, and in view of the party's apparent agreement on this point, concluded that such claims are cognizable.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; CONSTRUCTIVE DISCHARGE; GENERAL PRINCIPLES

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 ARB restated the law regarding hostile work environment and constructive discharge. The Board wrote:

    The term "discrimination" in the environmental whistleblower provisions carries the same meaning as the term "unlawful employment practice" in Title VII of the Civil Rights Act of 1964. Cf. Sasse v. Office of the United States Attorney , ARB Nos. 02-077, 02-078, 03-044, ALJ No. 98-CAA-7, slip op. at 34 (ARB Jan. 30, 2004). An "unlawful employment practice" includes a hostile work environment. Id. A hostile work environment exists when supervisors or co-workers engage in hostile acts that do not tangibly alter the victim's conditions of employment, such as salary or promotion opportunity, but are sufficiently severe or pervasive to create an abusive work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). A constructive discharge "can be regarded as an aggravated case of . . . hostile work environment." Pennsylvania State Police v. Suders, __ U.S. __, 124 S.Ct. 2342, 2354 (2004).

    To establish that Dugway subjected him to a hostile work environment, Hall must prove by a preponderance of the evidence that: (1) he engaged in protected activity of which Dugway was aware; (2) Dugway intentionally harassed him because of that activity; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of Hall's employment and to create an abusive working environment; and (4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect Hall. See Sasse, slip op. at 34 and cases cited therein. Only then would Hall have a basis for arguing that the work environment was so far beyond "ordinary discrimination" that it amounted to a constructive discharge. See Suders , 124 U.S. at 2354.

    A court may consider all of the purported hostile acts in determining liability if at least one of them occurred within the statutory filing period. National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117 (2002). Therefore, for us to consider all of the hostile acts Hall alleges, he must establish that at least one of them occurred within thirty days of February 13, 1997, when he filed his complaint, since the five environmental whistleblower statutes require that the complaint be filed within thirty days of the employer's "discriminatory" action.

Slip op. at 3-4 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT NOT ESTABLISHED BY OFFHAND COMMENTS OR ISOLATED INCIDENTS, UNLESS EXTREMELY SERIOUS

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 ARB found that substantial evidence did not support the ALJ's finding that a Commander Lieutenant Colonel had told the Complainant that a Commanding General had once called the Complainant a traitor because of the Complainant's environmental complaints. The Board also made an alternative finding that even if the Lieutentant Colonel had made the comment, the Complainant failed to prove that he perceived the comment as hostile at the time or that a reasonable person would have perceived it as hostile. The Board wrote:

"Offhand comments and isolated incidents (unless extremely serious)" and "merely offensive utterances" are not the stuff of which hostile work environments are made. Faragher v. City of Boca Raton , 524 U.S. 775, 787-788 (1998). The "objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. , 524 U.S. at 787; see also Sasse v. Office of the United States Attorney , ARB Nos. 02-077, 02-078, 03-044, ALJ No. 98-CAA-7, slip op. at 34 (ARB Jan. 30, 2004).

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; REQUIREMENT OF REPORTING SAFETY COMPLAINTS THROUGH CHAIN OF COMMAND IS NOT IMPROPER IF THE COMPLAINANT REMAINS FREE TO REPORT OUTSIDE THE CHAIN OF COMMAND

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 found that a commanding Lieutenant Colonel had counseled the Complainant that he should not be testifying to Congress or to compliance agencies such as the State or EPA, or even to the Dugway legal office, about his environmental safety concerns without first going to his management and giving them the information." The ALJ concluded that this was a gag order imposed as part of a hostile work environment. The ARB found that the record did not support the ALJ's finding, concluding instead that that the Lieutenant Colonel had merely instructed the Complainant to follow the chain of command and that he was also free to report outside the chain of command. In a footnote, the Board clarified its holdings on reporting through the chain of command:

It is true that we have stated that "an employer may not, with impunity, discipline an employee for failing to follow the chain-of-command, failing to conform to established channels or circumventing a superior." Talbert v. Washington Pub. Power Supply Sys., ARB No. 96-023, ALJ No. 93-ERA-35 (ARB Sept. 27, 1996). But this statement should not be understood to mean that employers have no right to require employees to tell them immediately about hazardous conditions. Cf. Saporito v. Florida Power & Light Co., Nos. 89-ERA-7, 89-ERA-17, slip op. at 2 (Sec'y Feb. 16, 1995) (Energy Reorganization Act whistleblower provision does not prohibit employers from requiring employees to report safety hazards immediately to the plant operator); Jones v. E G & G Def. Materials, Inc., ARB No. 97-129, ALJ No. 95-CAA-3, slip op. at 13-14 (ARB Dec. 24, 1998) (important goal of whistleblower provisions is to encourage front-line employees to bring their unique knowledge of workplace hazards to supervisors and the chain of command so that persons in authority can take corrective action quickly). At the same time, an employer may not rely on its chain of command policy as a pretext for disciplining an employee who reports safety concerns outside the chain of command. Cf. Pogue v. United States Dep't of Labor, 940 F.2d 1287 (9th Cir. 1991) (upholding ALJ finding that supervisor's testimony that he punished complainant because she did not follow his instructions to communicate through the "chain of command" was pretext).

Slip op. at n.15.

[Nuclear and Environmental Whistleblower Digest XIII C]
5TH CIRCUIT REVERSES ARB RULING THAT ELLERTH/FARAGHER STANDARD DOES NOT APPLY TO HOSTILE WORK ENVIRONMENT CASES BROUGHT UNDER THE ERA; AFFIRMATIVE DEFENSE OF REASONABLE CARE AND PROMPT RESPONSE

In Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004) ) (available at 2004 WL 1440554) (case below ARB No. 98-030, ALJ No. 1997-ERA-14), the Fifth Circuit held that "the ARB erred in finding that the standard developed by the Supreme Court in Burlington Industries v. Ellerth , 524 U.S. 742 (1998) and Faragher v. City of Boca Raton , 524 U.S. 775 (1998) was not applicable to hostile work environment cases brought under 42 U.S.C. § 5851 where no adverse personnel action was taken." The ARB had concluded that the Ellerth-Faragher standard was only applicable to Title VII sexual harassment cases and not to ERA whistleblower claims. The Fifth Circuit found the ARB's analysis unpersuasive.

The Fifth Circuit, however, affirmed the ARB's alternative holding that even under the Ellerth-Faragher standard, the Employer established both prongs of the Ellerth-Faragher affirmative defense: (1) that the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) that the harassed employee unreasonably failed to take advantage of any preventative opportunities provided by the employer. In the instant case, the Respondent had set up an Employee Concerns Program (ECP) that was independent of the usual chain of supervisory command and was in place long before the instant harassment took place. All employees were made aware of the program. Moreover, once the Respondent was made aware of the hostile environment, it acted swiftly to address the situation, assembling an investigatory team, shutting down production while requiring the staff to complete 40 hours of training in effective human interaction and teamwork, conducting a line-by-line group review of safety procedures, performing a follow-up investigation after restart of production, and ordering a root-causes analysis which resulted in the publication of written guidelines for supervisors on avoiding future hostilities. In addition, none of the plaintiffs had filed a harassment complaint with the ECP or proceeded through any other channel until a month after the harassment started. Moreover, after restart of production there were no other instances of harassment reported to the Respondent until the filing of the instant ERA complaints.

XIII C Continuing harassment

Where the Complainant's demotion and discharge claims were time barred, the regular, ordinary work of the demotion position cannot form the basis of a finding of an abusive or hostile work environment or a continuing violation. The separate and independent claim of a continuing course of harassment while employed in the demotion position concerns whether the complainant was discriminatorily treated differently than other workers in that position. If such treatment occurred, the Supreme Court's decision in Meritor Savs. Bank, F.S.B. v. Vinson, 477 U.S. 57 (1986) guides the evaluation of whether the nature and degree of harassment require to create an abusive or hostile work environment amounts to discrimination. In this regard the Secretary adopted the ALJ's finding that the complainant had not suffered discrimination when she was sent home to change from open toe shoes to closed toe leather shoes since the record did not contradict testimony that safe shoes were required and since the action did not appear to be disciplinary in nature. English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992).

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; GENERAL PRINCIPLES; HEATED WORK ATMOSPHERE INHERENT IN NATURE OF JOB

In Sasse v. Office of the U.S. Attorney, USDOJ , ARB No. 02 077, ALJ No. 1998 CAA 7 (ARB Jan. 30, 2004), the ARB reviewed the law on a hostile work environment claim. The Board wrote:

    Our cases draw heavily on the body of hostile work environment law that developed under the Civil Rights Act of 1964. E.g., Morgan, 536 U.S. 116; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). "A discrete retaliatory or discriminatory act >occurred' on the day that it >happened.' A party therefore must file a charge within [the number of days allowed by statute] of the date of the act or lose the ability to recover for it." Morgan , 536 U.S. at 110. Discrete adverse employment actions have tangible effects such as "termination, failure to promote, denial of transfer, or refusal to hire." Id. 536 U.S. at 114.

    A hostile work environment "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. 536 U.S. at 115. Discriminatory jokes, comments and epithets may create a hostile working environment. Id. 536 U.S. at 120. Behavior that strikes fear in the employee for his or her personal safety may create a hostile working environment. Robinson v. Sappington , 351 F.3d 317, 330 (7th Cir. 2003). Some gray area exists between the two categories of conduct. However, the essential difference between conduct that amounts to discrete adverse employment action and conduct that amounts to a hostile work environment is that the former has an immediate and tangible effect on the employee's income or employment prospects while the latter does not. Hostile work environment conduct affects the employee's psyche first, and his earning power or prospects only secondarily. Cf. Morgan, supra.



To prevail on a hostile work environment claim, the complainant must establish that the conduct complained of was extremely serious or serious and pervasive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Discourtesy or rudeness should not be confused with harassment, nor are the ordinary tribulations of the workplace, such as the sporadic use of abusive language, joking about protected status or activity, and occasional teasing actionable. Faragher v. City of Boca Raton , 524 U.S. 775, 787 (1998). Under this theory of recovery, a complainant is required to prove that: 1) he engaged in protected activity; 2) he suffered intentional harassment related to that activity; 3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and 4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant. Jenkins , elec. op. at 42; Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ Nos. 97-ERA-14 et al ., elec. op. at 13 (ARB Nov. 13, 2002); Berkman v. U.S. Coast Guard Academy, ARB No. 98 056, ALJ Nos. 97 CAA 2, 9, elec. op. at 16 17, 21 22 (ARB Feb. 29, 2000); Freels v. Lockheed Martin Energy Systems, ARB No. 95 110, ALJ Nos. 94 ERA 6, 95 CAA 2, elec. op. at 13 (Sec'y Dec. 4, 1996); Varnadore v. Oak Ridge Nat'l Lab., Nos. 92 CAA 2, 5; 93 CAA 1, elec. op. at 90 101 (Sec'y Jan. 26, 1996). Circumstances germane to gauging a work environment include "the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance." Berkman , slip op. at 16. A respondent is liable for the harassing conduct of a complainant's coworkers or supervisors if the employer knew, or in the exercise of reasonable care should have known of the harassment and failed to take prompt remedial action. Williams , slip op. at 55; Varnadore, slip op. at 75 78.

In Sasse , the Complainant was an Assistant United States Attorney who alleged that DOJ took adverse employment actions against him and created a hostile working environment because of his prosecution of environmental crimes. As evidence, he alleged that his supervisor made life unbearable for him by harassing and demeaning him, citing several examples of alleged poor demeanor by the supervisor. The ARB agreed, however, with the ALJ's finding:

The nature of the interactions described by Complainant regarding prosecution decisions are to be expected and are found to be a normal part of the give and take expected in [a prosecutor's] office. When forceful individuals have differing opinions, tempers are bound to flare. In such an atmosphere arguments are likely to occur and it can be expected that language may at times be significantly less than polite.

The Board found implausible the Complainant's attribution of the supervisor's alleged hostility to environmental enforcement to the fact that the supervisor had once worked for a chemical company. The Board also took into account that the Complainant's testimony about the supervisor's treatment of him was not collaborated whereas other witnesses' testimony indicated that the supervisor was not abusive nor threatening toward employees.

[Editor's note: See also Belt v. United States Enrichment Corp. , ARB No. 02-117, ALJ No. 2001-ERA-19 (ARB Feb. 26, 2004) (ordinary tribulations of the workplace such as sporadic use of abusive language, joking about protected status or activity, occasional teasing are not actionable).

See also Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004) (reversing the ARB regarding the applicability of the Ellerth/Farager analysis. ]

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; COMPLAINANT'S INABILITY TO ESTABLISH THAT RESPONDENT'S MANAGEMENT WAS RESPONSIBILE FOR ANONYMOUS HARASSMENT; EVIDENCE THAT RESPONDENT TOOK PROMPT AND APPROPRIATE CORRECTIVE ACTION

In Overall v. Tennessee Valley Authority , 1999 ERA 25 (ALJ Mar. 16, 2004), the Complainant was reinstated following successful whistleblower litigation before DOL. Subsequently, the Complainant filed a new whistleblower complaint alleging, inter alia , that he was subjected to a hostile work environment upon his reinstatement. Following a four week hearing, the ALJ thoroughly analyzed the events that the Complainant proffered as showing hostility. The ALJ found that 11 incidents such as observations of suspicious vehicles, aggressive traffic encounters, and anonymous non specific phone calls had not been proven to be harassing events in retaliation for protected activity. The ALJ, however, found that 12 other incidents such as telephone calls in which a whistle was blown or whistleblowing activity expressly mentioned, a note referencing Karen Silkwood, other notes, and a fake bomb placed in the Complainant's vehicle were established to be in retaliation for his protected activity. Citing Harris v. Forklift Systems, Inc. , 510 U.S. 17 at 23, the ALJ analyzed the elements of a hostile work environment claim, and found that the Complainant had established that the conduct was frequent and severe, threatened physical harm, unreasonably interfered with his work performance, and would have detrimentally affected a reasonable person in the Complainant's position. However, the ALJ found that 11 of the 12 incidents found to be harassing were anonymous, with the Complainant unable to offer any evidence that the incidents were perpetrated by or for TVA superiors, and therefore insufficient to support respondeat superior liability. The 12th incident was an occasion when a supervisor stated "we're here as engineers to not make up problems but [to] find them and correct them." The found that although the statement could have been related to the Complainant's protected activities, it was mild in nature and did not reach the kind of foul language or mean behavior which the case law indicates constitutes severe or pervasive behavior incident to a hostile work environment. The ALJ also found insufficient evidence to establish Complainant's claim that he had been monitored.

The ALJ also found that the Respondent took prompt and appropriate corrective action that was reasonably calculated to end the harassment, even though the identity of the harasser was never established.

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; TENSION FROM ENVIRONMENTAL ACTIVISM MUST BE SHOWN TO HAVE RESULTED IN INTENTIONAL DISCRIMINATION SEVERE OR PERVASIVE ENOUGH TO ALTER THE CONDITIONS OF EMPLOYMENT AND AFFECT A REASONABLE PERSON DETRIMENTALLY

In Dierkes v. West Linn Wilsonville School District , ARB No. 02 001, ALJ No. 2000 TSC 2 (ARB June 30, 2003), Complainant was a kindergarten teacher who raised concerns about PCBs and asbestos in the school. She argued that the tension resulting from her environmental activism resulted in a hostile work environment. The ARB, however, found that the record did not establish a hostile work environment, agreeing with the ALJ's findings that the actions and statements cited by Complainant as contributing to an abusive working environment were either not established as adverse or were part of the normal feedback between supervisor and employee. The Board considered the circumstances of the case, including Complainant's colleagues' heated expressions of disagreement with Complainant's viewpoint, but found that they did not demonstrate a regular or pervasive enough activity to alter the conditions of her employment and create an abusive work environment. The ARB found that staff e mails were not abusive, physically threatening or humiliating and that although fellow teachers and the principal expressed strong disagreement with Complainant's position and actions B both in writing and at a public meeting called by the union B they did not encourage each other to ostracize Complainant and said nothing about her personally. The ARB found that Complainant:

failed to establish that she suffered intentional discrimination which was severe or pervasive enough to alter her conditions of employment and affect a reasonable person detrimentally. She also failed to demonstrate that the school district should be held accountable for the viewpoints of her co workers and supervisors concerning the environmental problems at [the school].

Slip op. at 10.

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; WHETHER LEVEL OF HOSTILITY WOULD HAVE DETRIMENTALLY AFFECTED A REASONABLE PERSON

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd regarding applicability of Ellerth/Farager analysis, Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), the ARB indicated that, in a hostile work environment case, once it has been concluded that a complainant engaged in protected activity and suffered intentional harassment related to that activity, the trier of fact must determine the level of hostility demonstrated and whether that hostility would have detrimentally affected a reasonable person and actually did detrimentally affect the complainant. The Board wrote:

To evaluate the level of hostility B i.e., whether the Complainants have established the existence of an abusive working environment B requires consideration of the factors from Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993), factors, discussed above: the frequency and severity of the harassment; whether the harassment was physically threatening or humiliating, or merely offensive; and whether it unreasonably interfered with the complainant's work performance. In applying these factors we employ an objective standard and consider the impact that the harassment would have on a reasonable person, and the actual impact on the Complainants. The Harris factors are illustrative and not a definitive list of requirements that must be met in order to establish an actionable level of hostility. We consider all the "surrounding circumstances, expectations and relationships" in evaluating the workplace environment. We again emphasize that, above all, our evaluation of the workplace environment must serve the purpose of ERA whistleblower protection, which is to promote nuclear related health and safety by encouraging the raising of safety related concerns.

Williams , ARB No. 98 030, USDOL/OALJ Reporter at 44 (citations omitted).

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; EMPLOYER LIABILITY; VARNADORE (1996) AND THE NEGLIGENCE STANDARD

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), the ARB observed that its holding in Varnadore v. Oak Ridge Nat'l Laboratory, 1992 CAA 2 (ARB June 14, 1996) ( Varnadore (1996)) regarding employer liability for supervisory harassment was an adoption of the negligence, or notice liability standard for evaluating employer liability in supervisory harassment Title VII cases. The Board stated that "[t]he negligence standard is also referred to as a theory of direct liability because it looks to the employer's actions, rather than those of the harassing employee, to determine whether liability will attach." Williams , ARB No. 98 030, USDOL/OALJ Reporter at 47 (citations omitted). The Board wrote:

Under the negligence standard, an employer is liable for an employee's harassing conduct if the employer knew, or in the exercise of reasonable care should have known, of the harassment and failed to take prompt remedial action. To avoid liability an employer must take both preventive and remedial measures to address workplace harassment. Wilson , at 540 42. An employer who fails to provide an adequate procedure for raising harassment complaints has not exercised reasonable care to ensure that it receives notice of the harassment, and cannot thereafter successfully defend on grounds that it did not receive actual notice. Instead, the employer will be deemed to have constructive notice of the harassment. Constructive notice may also be imputed to the employer if the harassment was so severe and pervasive that management should have known about it. Once an employer has been put on notice of the harassment, the question becomes whether the employer has addressed the harassment claim "adequately and effectively."

Id. , USDOL/OALJ Reporter at 48 (citations omitted). The Board rejected Complainants' argument that the Faragher v. City of Boca Raton , 524 U.S. 775 (1998) and Burlington Industries v. Ellerth , 524 U.S. 742 (1998) and "vicarious liability" standard should be used in ERA whistleblower cases.

In Williams , the ARB carefully and thoroughly reviewed the evidence and determined that when Respondent's upper management received actual notice of the hostile work environment it took prompt, appropriate action to correct the hostile work environment, both when it first received the report and when it was provided notice of recurrent hostility. Moreover, the ARB found that Respondent had an adequate complaint procedure in place when the hostile work environment developed, and therefore could not be held to have had constructive notice prior to the actual notice. The remedial action taken by upper management included, inter alia , cautioning workers against reprisals against whistleblowers and appealing to their sense of teamwork and camaraderie; a shut down of operations for training and review; instructions for the entire staff to complete 40 hours of instruction in team building and workplace interaction; conducting a "root cause" analysis and adopting an "Employee Concern Action Plan, which included higher management discussions both amongst itself and with supervisors; distribution of a "Team Building Lessons Learned" memo to lower and mid level managers. The Board noted that upper level managers were personally involved in these remedial efforts and that the efforts were effective in addressing the harassment. Thus, although Complainants had established the existence of a hostile work environment resulting from their protected activity, Respondent was held not liable.

[Editor's note: The ARB's rejection of the Ellerth/Faragher analysis was reversed in Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004).]

[Nuclear & Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; ELEMENTS

In Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd regarding applicability of Ellerth/Farager analysis, Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), the ARB stated the elements of a hostile work environment case. In order to establish Respondent's liability for workplace hostility, a complainant must

establish that prohibited harassment created a HWE, through proof, by a preponderance of the evidence, of the following elements:

1) that he engaged in protected activity;

2) that he suffered intentional harassment related to that activity;

3) that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment;

4) that the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant.

See Berkman , slip op. at 16 17, 21 22; Freels v. Lockheed Martin Energy Systems, ARB No. 95 110, ALJ Nos. 94 ERA 6, 95 CAA 2, slip op. at 13 (Sec'y Dec. 4, 1996) (quoting West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1996)).

[Nuclear & Environmental Whistleblower Digest XIII C]
LEVEL OF HOSTILITY TO SUSTAIN A HOSTILE WORK ENVIRONMENT COMPLAINT

The ARB decision in Williams v. Mason & Hanger Corp. , ARB No. 98-030, ALJ No. 1997-ERA-14 (Nov. 13, 2002), rev'd regarding applicability of Ellerth/Farager analysis, Williams v. Administrative Review Board, USDOL , __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), contains an examination of the level of hostility that a complainant must establish to sustain a hostile work environment complaint under the ERA. DOL has adopted the Title VII requirement that in order to support a hostile work environment allegation a complainant must establish harassment that is "sufficiently severe or pervasive as to alter the conditions of employment and create an abusive or hostile work environment." The ARB summarized the holding in Berkman v. U.S. Coast Guard Academy , ARB No. 98 056, ALJ Nos. 97 CAA 2, 9 (ARB Feb. 29, 2000), which references Title VII caselaw; in brief, all the circumstances must be considered, with recognition that "actions or remarks that fall within the 'normal range' of conduct in one workplace may be unacceptable in another. The determination regarding whether the harassing incidents rise to an actionable level ultimately turns on the question of how best to serve the whistleblower protection purpose of the ERA, i.e. , whether such harassment undermines the raising of safety concerns protected by the ERA. Thus, although the analysis requires consideration of the norms of conduct in the workplace, the determinative factor is the impact of the harassment on the raising of safety concerns protected by the ERA."

In Williams , Complainants were technicians engaged in the disassembly of nuclear weapons, a function that required extraordinary attention to detail and involved a high degree of physical risk. The workplace was "rough and tumble" where leeway was provided for intemperate remarks by both the technicians and first line supervisors. Thus, the ARB noted that in analyzing the incidents the Complainants allege constituted a hostile work environment, consideration would be given to whether the events were humiliating, threatening or merely offensive. The ARB also noted that it would analyze how frequently the incidents occurred, to what extent the harassment pervaded the workplace and whether the harassment unreasonably interfered with the respective Complainants' work performance.

[Nuclear and Environmental Whistleblower Digest XIII C]
HOSTILE WORK ENVIRONMENT; SUMMARY DECISION APPROPRIATE IF ELEMENT OF BERKMAN TEST NOT PRESENTED

In Moore v. U.S. Dept. of Energy , ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), Complainant alleged that during OSHA's investigation of an earlier complaint, Respondent made certain statements against him and engaged in improper ex parte contacts with the OSHA investigator, which Complainant viewed as retaliatory. The ALJ granted summary decision based on the conclusion that Complainant failed to allege an adverse action. On review, Complainant argued that in a hostile working environment case, he is not required to show a tangible job detriment. The ARB agreed with this proposition, but nevertheless found that summary decision was properly granted because Complainant had not alleged or offered facts to support a hostile work environment case under the five factor test stated in Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 (ARB Feb. 29, 2000). In a footnote, the ARB rejected Complainant's argument that the ALJ erred in denying him discovery, finding that Complainant had not explained how any amount of discovery could produce evidence that Respondent's conduct during the investigation of the first complaint could amount to pervasive and regular discrimination (which one of the elements of the Berkman test).

[Nuclear & Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT

In Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB found that Complainant had been subjected to a hostile work environment in violation of various environmental whistleblower provisions where Respondent engaged in a serious of actions that (1) had the effect of isolating Complainant from decision making and responsibilities for ensuring environmental compliance, and (2) singled out Complainant for hostile treatment not accorded to other employees (such as requiring Complainant to have a supervisor present when making up advanced leave, placing Complainant on AWOL status for a hyper-technical violation of the policy on requesting leave, a supervisor's threat to sue Complainant for raising environmental compliance issues with the Assistant Superintendent, and not allowing Complainant to meet alone with contractors or HAZMAT trainees). The ARB noted that in each instance the harassing actions were taken by Complainant's supervisors, and that Complainant had complained to higher levels of management, but Respondent did not put an end to the abuse.

[N/E Digest XIII C]
HOSTILE WORK ENVIRONMENTAL; THREAT BY CO-WORKER WITHOUT KNOWLEDGE OF EMPLOYER

An allegation that a co-worker threatened Complainant based on the belief that Complainant had turned him in for not following safety procedures cannot be considered part of a hostile work environment claim where the complainant does not allege that he told his employer about the threat at the time and therefore cannot now allege that the employer acted inappropriately in responding to the threat. Boudrie v. Commonwealth Edison Co ., 95-ERA-15 (ARB Apr. 24, 1997).

CONSTRUCTIVE DISCHARGE
[N/E Digest XIII C]

In Talbert v. Washington Public Power Supply System , 93-ERA-35 (ARB Sept. 27, 1996), the Board considered whether Respondent had rendered Complainant's continued employment so unpleasant or unattractive that a reasonable person would have been compelled to resign. Complainant had been scheduled for transfer out of the reactor operations group because of his poor working relationship with the core design group, and the need for greater cooperation between those groups following an oscillation event. The managers who proposed the transfer made it clear that they would not support Complainant's appointment to a position that would put him in a spokesperson role. The manager into whose group Complainant was to be transferred, however, was not subject to the position of previous managers. That manager also was confident of Complainant's engineering skills, wanted to obtain his services, and believed that he could work with Complainant on how he delivered his message. Before that manager could confirm with Complainant his view that there would be no limitations, Complainant had already resigned and could not be reached although he knew that the new manager was in the process of clarifying that point.

The Board held that Complainant's resignation was premature; that Respondent wished to retain him and was in the process of finding him suitable employment.

HOSTILE WORK ENVIRONMENT; MUST RELATE TO EVENTS OTHER THAN ALLEGED PROXIMATE RETALIATION
[N/E Digest XIII C]

Where Complainant alleged generally that he was subjected to a hostile work environment, but he did not point to any specific instances of harassment or alleged retaliatory actions other than the events associated with the alleged proximate constructive discharge or threat of retaliatory reprisal, the hostile work environment legal analysis does not need to be applied. See Mosley v. Carolina Power & Light Co ., 94-ERA-23 (ARB Aug. 23, 1996).

HOSTILE WORK ENVIRONMENT; BLACKLISTING; WELL-PLEADED FACTS TO WITHSTAND RULE 12(b)(6) MOTION
[N/E Digest XIII B 1 and XIII C]

HOSTILE WORK ENVIRONMENT; SUPERVISOR WHO DISCOURAGED EMPLOYEES FROM HAVING CONTACT WITH COMPLAINANT AND SUPERVISOR WHO POSTED AN OFFENSIVE MEMORANDUM CONCERNING THE COMPLAINANT

NON-CONSIDERATION OF NON-ACTIONABLE EVENTS IN REGARD TO ISSUE OF PERVASIVENESS AND REGULARITY
FINDING THAT POSTING WAS OBNOXIOUS AND OFFENSE IS, IN EFFECT, A FINDING OF DETRIMENTAL EFFECT
RESPONDEAT SUPERIOR; LIABILITY DEPENDS ON FORESEEABILITY OR SCOPE OF EMPLOYMENT AND ON INADEQUATE RESPONSE; ADEQUACY OF RESPONSE IS BASED ON REASONABLENESS TEST

[N/E Digest XIII C]

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 considered whether two acts by supervisors, which although not resulting in a tangible job detriment, constituted a hostile work environment. In an earlier decision, the Secretary of Labor had held that a supervisor in another division who had discouraged his employees from having contact in the halls with the Complainant was motivated, at least in part, by retaliatory animus. Similarly, the Secretary had held that the posting by another supervisor of a memorandum that explicitly ridiculed the Complainant's whistleblower activity was retaliatory.

The Board noted that the Secretary applies Harris v. Forklift Systems, Inc. , 114 S.Ct. 367, 371 (1993) and the five part test articulated in West v. Philadelphia Electric Co. , 45 F.3d 744,753 (3d Cir. 1995) to hostile work environment cases in DOL whistleblower cases.

Applying Harris , and the Third Circuit test, the Board found that although the Complainant alleged retaliation beginning in 1989 and continuing though 1993, only these two incidents were actionable. These two incidents considered cumulatively, were not "pervasive, severe or regular". The Board found that the Complainant was understandably upset by the posting, but there was no showing that it had a significant impact on the work environment.

Although the Board agreed with the Secretary's earlier finding that the posting was obnoxious and offensive (the Board noting that this was in essence a detrimental effect on the Complainant), the posting incident foundered on the element of respondeat superior. The Board cited Pierce v. Commonwealth Life Ins. Co. , 40 F.3d 796, 803 (6th Cir. 1994), in determining whether an employer is liable for the acts of a supervisor. According to the Sixth Circuit, liability depends on "1) whether the supervisor's harassing actions were foreseeable or fell within the scope of his employment and 2) even if they were, whether the employer responded adequately and effectively to negate liability." Pierce, 40 F.3d at 803. See also Karibian v. Columbia Univ ., 14 F.3d 773, 780 (2d Cir. 1994). Although the ALJ in the Complainant's first complaint had found that the posting was "almost inevitable" in light of the anti-whistleblower environment he found to exist at Oak Ridge Nuclear Laboratory, the Board noted that the Secretary had rejected that finding in a prior decision in the matter, and that it could not concur with the ALJ's finding. Further, the Board found that the employer's response upon learning of the posting effectively negated potential liability.

The Complainant's supervisor had immediately called a meeting with the supervisor who had posted the offensive memorandum, and then sent him a memorandum pointing out the Respondent "want[s] to avoid even the perception of a hostile working environment for [the Complainant] and for all other ACD people." Slip op. at 77, quoting transcript from first proceeding. The Board, relying on Baskerville v. Culligan Int'l Co. , 50 F.3d 428, 431-432 (7th Cir. 1995), applied a reasonableness test, and found that this immediate response was sufficient to negate liability. The Board distinguished Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), on the ground that the instant case involved isolated incidents, one of which was immediately attended to, while Smith involved upper level managers who knew of repeated, derogatory cartooning and took no action to remedy the situation.

HOSTILE WORK ENVIRONMENT; CARTOONS RIDICULING THE COMPLAINANT
[N/E Digest XIII C]

In Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996), a series of cartoons ridiculing the Complainant's protected activity was found to have fostered and encouraged a hostile working environment. The cartoons appeared over a 2 month period in a common workplace area; the cartoons were sarcastic and derogatory; the Secretary found that "[a]ny reasonable employee concerned in the least with nuclear safety would have regarded these cartoons as offensive." Slip op. at 26. The Secretary found that Respondent's "management had notice and did not attempt to remedy the abuse .... Instead, they laughed about it." Slip op. at 27 (citations omitted).

HOSTILE WORK ENVIRONMENT; ELEMENTS OF PROOF
[N/E Digest XIII C]

The elements of proof in a hostile work environment case are:

the employee engaged in protected activity and suffered intentional retaliation as a result;
the retaliation was pervasive and regular;
the retaliation detrimentally affected the employee;
the retaliation would have detrimentally affected other reasonable whistleblowers in that position; and
the existence of respondeat superior liability.

Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y ar. 13, 1996).

HOSTILE WORK ENVIRONMENT; TANGIBLE PSYCHOLOGICAL INJURY NOT REQUIRED
[N/E Digest XIII C]

In a hostile work environment case, tangible psychological injury is not required. Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996).

HOSTILE WORK ENVIRONMENT; SECRETARY S ADAPTATION OF THIRD CIRCUIT TEST; RESERVATION OF RULING WHEN RELATED CASES MAY BE RELEVANT TO OVERALL PICTURE
[N/E Digest VIII B 1 d and XIII C]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary detailed his view of the law concerning hostile work environment. The Secretary found that the principles stated in Meritor Savings Bank v. Vinson , 477 U.S. 57 (1986) and Harris v. Forklift Systems, Inc. , 114 S.Ct. 367 (1993) are equally applicable to environmental whistleblower cases, noting that the Fourth Circuit had so held in an ERA case, English v. General Electric Co. , 858 F.2d 957 (4th Cir. 1988). The Secretary then cited a Third Circuit decision, West v. Philadelphia Electric Co. , 45 F.3d 744 (3d Cir. 1995), in regard to the necessary elements of proof in a hostile work environment case:

(1) the plaintiff suffered intentional discrimination because of his or her membership in the protected class;
(2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the plaintiff;
(4) the discrimination would have detrimentally affected a reasonable person of the same protected class in that position; and
(5) the existence of respondeat superior liability.

The Secretary then endeavored to tailor these elements to a whistleblower claim alleging hostile work environment. The first element is modified to become an inquiry into whether the complainant engaged in protected activity and whether he or she suffered intentional retaliation as a result.

In regard to the element of "pervasive and regular" discrimination, the Secretary noted that frequency and severity are two factors that may be weighed, and cited Meritor Savings Bank and Harris , and a 6th Circuit and a 7th Circuit decision as guides. The Secretary, however, declined to make a ruling on this element because the Complainant in the case sub judice had filed several subsequent complaints about additional alleged acts of retaliation. Those cases were still pending before the Secretary, and the Secretary determined that he should consider the cases together, citing decisions in which courts had cautioned against considering incidents of discrimination in isolation and stressed the value of an overall picture.

HOSTILE WORK ENVIRONMENT; TANGIBLE JOB DETRIMENT NOT A REQUIRED ELEMENT
[N/E Digest XIII C]

The Secretary observed in Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), that a tangible job detriment is not a required element of a hostile work environment case. Slip op. at 92 n.93.

ADVERSE ACTION; HOSTILE WORK ENVIRONMENT/CONSTRUCTIVE DISCHARGE; REASONABLE STEPS TO RECTIFY; REQUIREMENT THAT ENVIRONMENT WOULD ACTUALLY COMPEL A REASONABLE PERSON TO RESIGN
[N/E Digest XIII C]

In Boudrie v. Commonwealth Edison Co. , 95-ERA-15 (ALJ Dec. 11, 1995), the ALJ reviewed the law concerning what constitutes a hostile work environment in his recommended decision and order. Extending the discussion of the Secretary of Labor in English v. General Dynamics Corp. , 85-ERA-2 (Sec'y Feb. 13, 1992), the ALJ noted that the United States Supreme Court has declared that evidence of an alleged hostile work environment must satisfy both an objective and subjective test in order to constitute discriminatory conduct. Harris v. Forklift Systems, Inc. , 507 U.S. __, 114 S. Ct. 367 (1993). The ALJ also noted decisions listing factors to consider when determining the extent of possibly hostile activity. He noted that the Seventh Circuit has stated that if an employer takes reasonable steps to discover and rectify acts of harassment of its employees, its legal liability is discharged. Baskerville v. Culligan Int l Co. , 50 F.3d 431 (1995). Moreover, the ALJ reviewed Fifth and Seventh Circuit decisions indicating that circumstances that might adequately establish a hostile work environment will not necessarily suffice to establish a constructive discharge; the severity and the pervasiveness of the harassment must be so great to compel the reasonable person to resign. See Landgraf v. USI Film Prod., Inc. , 968 F.2d 427, 430 (5th Cir. 1990); Chambers v. American Trans. Air, Inc. , 17 F.3d 998, 1005 (7th Cir. 19xx), cert. denied , 115 S. Ct. 512 (1994); Saxton v. American Tel. & Tel. Co. , 10 F.3d 526, 536-37 (7th Cir. 1993).

XIII C ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; RESPONDENT'S RESPONSIBILITIES IN RESPONDING TO COMPLAINT OF HARASSMENT; ATTEMPTS AT CONCILIATION FAVORED; RELEVANCE OF COMPLAINANT'S PRESENT ATTITUDE TOWARD WORKPLACE

The Fourth Circuit has recognized that "retaliatory harassment" is actionable under the ERA, as in Title VII cases, for hostile work environments. English v. Whitfield, 858 F.2d 957, 963-964 (4th Cir. 1988). For harassment to be actionable, it must be sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (Title VII decision applied to ERA by the Secretary in English v. General Elec. Co., 85-ERA-2, slip op. at 6 (Sec'y Feb. 13, 1992)).

In Marien v. Northeast Nuclear Energy Co, 93-ERA-49 and 50 (Sec'y Sept. 18, 1995), the Secretary addressed the scope of a respondent's responsibilities when responding to a complaint of harassment, finding that the ERA requires only that an employer consider and evaluate allegations of harassment in an open-minded and fair manner. It was not a hostile act by the Respondents in Marien to hire mediators rather than a fact finder in responding to Complainants allegations of harassment. The Secretary noted that attempting conciliation is the first step in attempting to resolve a claim of employment discrimination.

In Marien , the Secretary also found it significant that one of the Complainants testified that she still loves her job and hopes to stay as tending to disprove the existence of a hostile work environment. Hostile work environments, the Secretary noted, typically involve detraction from an employee's job performance, discouragement of employees from remaining on the job, or prevention of employees from advancing in their careers.

XIII C ADVERSE EMPLOYMENT ACTION; INAPPROPRIATE CONDUCT AND STATEMENTS

In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that various statements and conduct (such as facial expressions and tone of voice) of various persons including the Secretary of Energy constitute discriminatory or retaliatory conduct. The ALJ recommended dismissal of the complaint where the Complainant failed to plead how such conduct adversely affected his compensation, terms, conditions or privileges of employment.

XIII C Adverse action; hostile work environment

Adverse employment action includes the creation of a hostile work environment. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995) (several employees instructed not to talk to Complainant; attitude toward Complainant changed from belief he was doing "ok" to "loss of trust" and calling Complainant inept and an "s.o.b.").

XIII C Hostile work environment

In Varnadore v. Oak Ridge National Laboratory, 94- CAA-2 and 3 (ALJ Apr. 6, 1994), the ALJ looked to Title VII authority for guidance on what constitutes a hostile work environment. In Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993), the United States Supreme Court held that "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview." Id. at 370.

An objectively hostile or abusive work environment occurs when the workplace is permeated with discriminatory intimidation, ridicule, and insult and is sufficiently severe or pervasive so as to alter the conditions of the victim's employment. Id. Such conduct by other employees, if propagated, sanctioned or condoned by management, would evidence an adverse employment action, because it would show that the employer discriminated against the employee with respect to conditions or privileges of employment. See 29 C.F.R. § 24.2(a). The ALJ noted that the Supreme Court has found that the mere utterance of an epithet that engenders offensive feelings in an employee does not of itself sufficiently affect the conditions of employment. Harris v. Forklift Sys., Inc., 114 S. Ct. at 370.

In Varnadore , a labor relations specialist conducting a two-week training session allegedly made a derogatory remark about Complainant to an individual who did not work with Complainant during a class break. That individual did not report the remark to Respondent's management, but relayed it to Complainant's attorney, who in turn reported the incident to the media. The ALJ, ruling on a motion for summary judgment, assumed that the remark was made, but concluded that the comment did not create or evidence a hostile work environment.

XIII C Ridicule

In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ recognized post-hearing activity by the Respondent -- the posting of a memorandum ridiculing the Complainant -- to be relevant, and that the timing and the contents of the memo raised the inference of retaliation. The explanation of intent to educate newer employees about another view of radiation (that it's not as bad as the public believes) was clearly pretext.

[Editor's note: The ALJ did not address the question of whether this activity was within the scope of the complaint before him. Is it a permissible amendment of the complaint? Should it have been the subject of a separate complaint?]

[Nuclear and Environmental Digest XIII D]
AVOIDANCE OF LIABILITY FOR RETALIATORY ACTIONS OF NON-SUPERVISORY EMPLOYEE WHERE RESPONDENT TAKES PROMPT DISCIPLINARY ACTION REASONABLY CALCULATED TO PREVENT FURTHER HARASSMENT

In Lewis v. U.S. Dept. of Labor, Adm. Rev. Bd. , No. 08-12114 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished) (case below ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6), the Eleventh Circuit assuming, without deciding, that subjecting an employee to a hostile work environment in retaliation for protected activity constitutes adverse employment action, found that substantial evidence supported the ARB's conclusion that the Respondent (EPA) was not liable for one of its employee's retaliatory conduct where that employee had no supervisory authority over the Complainant and because EPA took prompt disciplinary action against the employee that was reasonably calculated to prevent further harassment of the Complainant by the employee.

[Nuclear and Environmental Digest XIII D]
LIABILITY FOR ACTIONS OF EMPLOYEE AVOIDED WHERE RESPONDENT TOOK PROMPT DISCIPLINARY ACTION

In Lewis v. United States Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB June 30, 2008), in considering on reconsideration the Complainant's hostile work environment claim, the ARB held that the Respondent was not liable for an employee's dissemination of a paper critical of the Complainant's views on sludge fertilization (which was the basis of the Complainant's protected activity), because the Respondent had taken prompt disciplinary action against that employee upon learning what he had done.

[Nuclear and Environmental Digest XIII D]
ADVERSE ACTION; BEING SENT HOME EARLY FOUND NOT TO BE MATERIALLY ADVERSE WHERE COMPLAINANT GIVEN CLEAR NOTICE FROM A MANAGER THAT HE WAS NOT FIRED AND WOULD NOT LOSE ANY INCOME

In McNeill v. USDOL , No. 05-4190 (6th Cir. June 27, 2007) (unpublished) (case below ARB No. 02-002, ALJ No. 2001-ERA-3), the court found that substantial evidence supported the ARB's holding that the Complainant had not been terminated, and that even if he had been terminated, this action had not been materially adverse. The Complainant had been sent home early after disputing his work instructions (which he had the right to do if the instructions were incomplete). The Complainant asserted that he had been terminated and his unescorted access denied. Although the Complainant presented some countervailing evidence, substantial evidence supported the ARB's finding that the Complainant's first-line supervisor did not have the authority to fire him. The court also rejected the Complainant's contention that being sent home early constituted a materially adverse employment action. The court found that, except for a period of at most a few hours, during which the Complainant may have believed that he was terminated, the Complainant had been clearly notified by telephone conversation with his manager that he was not terminated and would not lose any income. Citing to Burlington Northern & Santa Fe Railway Co. v. White , - - U.S. - -, 126 S. Ct. 2405 (2006), the court concluded that a reasonable worker would not have been dissuaded from blowing the whistle under the circumstances.

The court also found that substantial evidence supported the ARB's determination that the Complainant's unescorted access had been placed on administrative hold (a temporary and routine measure when employees are involved in an "incident") rather than denied. Thus, the court rejected the Complainant's assertion that he would have to report his termination and loss of access to potential future employers.

The Complainant argued that the Respondent's actions towards him created a chilling effect, and presented the testimony of one worker who, because of what he had heard about the Plaintiff's situation, believed that he had to work instruction packages as written or face being fired. The court rejected this argument, observing that the relevant issue was whether the Complainant suffered a materially adverse employment action, and not whether the other worker may have been negatively affected by hearing about the Complainant's alleged termination. The court also held that the Respondent had acted swiftly and thoroughly to assuage any potential notion that employees could not safely engage in activity protected by the ERA.

[Nuclear & Environmental Digest XIII D]
ADVERSE EMPLOYMENT ACTION; RESPONDENT IMMEDIATELY RESCINDS ACTION

In Griffith v. Wackenhut Corp. , ARB No. 98-067, ALJ No. 1997-ERA-52 (ARB Feb. 29, 2000), Complainant had been suspended for three days for failing to report a safety breach until six months after it occurred. On the first day back after the suspension, however, Complainant was informed that her suspension was being rescinded, lost pay restored, and all records of the disciplinary action expunged. These measures were in fact fully completed within days of Complainant's return to work. The ALJ found that, late or not, Complainant's report was protected activity per se for which no disciplinary action can be administered, and found that although Respondent had substantially purged itself of the discrimination by rescinding its suspension action, recommended that Respondent be required to certify and describe its compliance with an order of the investigatory agency at that time the Employment Standards Administration to conduct training for its supervisors and staff regarding the anti-discrimination provisions of the ERA, and to reimburse Complainant for the costs of litigation.

The ARB declined to adopt the ALJ's view of the case, finding instead that Complainant:

failed to establish that the disciplinary action Wackenhut took against her adversely affected her compensation, terms, conditions or privileges of employment. The suspension without pay and reprimand caused Griffith three days of anxiety about her employment status but resulted in no financial harm or negative effect on her employment or earning capacity because of the alacrity and thoroughness of Wackenhut's self-corrections. Assuming without deciding that Griffith's unhappiness with her employment at Wackenhut during the late summer and early fall of 1997 were proximately related to the suspension and reprimand, her negative state of mind was too temporary to render the suspension and reprimand "adverse."

Slip op. at 10-11. The ARB reviewed various court of appeals decisions, and concluded:

In our view, these decisions make the unexceptionable point that personnel actions that cause the employee only temporary unhappiness do not have an adverse effect on the employee's "compensation, terms, conditions or privileges of employment." ("Temporary" is an important concept here; we do not suggest that the psychological effect of a personnel action on the targeted employee could never establish the adverseness of the personnel action.)

The ARB also emphasized that it was the employer itself that almost immediately decided that Complainant's suspension was not justified; it corrected the error on their own without any prodding from the NRC or the Department of Labor; in addition, the employer's investigating officials developed recommendations for curing underlying training and supervision deficiencies recommendations which were implemented. The ARB took care to explain that it was not adopting the proposition that a self-correction can always negate an adverse employment action; rather, the ARB appears to have adopted a rule that permits consideration of the timing, reasons and nature of the employer's corrective action. In the instant case, the ARB concluded that Respondent's actions, had viewed in their entirety "sent the right message to employees and resulted in safety improvements." The ARB also noted that the 1992 amendments to the ERA indicated Congress' concern that the whistleblower provision not become a vehicle for negligible claims.

The ARB recognized the existence of a body of decisional law holding that the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law, but found this case law inapposite. Rather, the ARB held that "the violation-without-remedy concept is particularly at odds with §5851, because §5851 was created for the sole purpose of providing a remedy to nuclear industry whistle blowers. In this respect, §5851 can be distinguished from some of the other whistleblower statutes enforced by the Labor Department." The ARB explained that the Atomic Energy Commission and the NRC had the power, long before § 5851 was added to the ERA in 1978, to prohibit whistleblower retaliation by covered employers and to force corrections. Thus, the ARB responded to one of Complainant's stated reasons for filing the complaint with DOL to prod Respondent into providing better training and better supervision that § 5851 is not the proper mechanism to achieve that goal. The ARB stated that concerns about energy safety hazards should be reported to the NRC the agency that has the power to rectify safety problems.

It should be noted that one member of the Board concurred in disposition of the case based on its particular facts emphasizing that he did not view the decision as establishing any broad rule of law.

[ Editor's Note : Compare Griffith with Blackburn v. artin , 982 F.2d 125, 132 (4th Cir. 1992), where the Secretary had denied compensatory damages because she had found no actual financial loss; the 4th Circuit, however, agreed with the ALJ's holding that compensatory damages are appropriate in wrongful discharge cases for "intangible damages such as mental anguish when the economic impact cannot be quantified."].

[Nuclear and Environmental Whistleblower Digest XIII D]
ADVERSE EMPLOYMENT ACTION; TEMPORARY UNHAPPINESS STANDING ALONE INSUFFICIENT TO ESTABLISH ADVERSE EMPLOYMENT ACTION; MANAGER'S IMMEDIATE AND THOROUGH ABORTING OF IMPROPERLY HANDING BY IMMEDIATE SUPERVISOR

The Respondent did not engage in adverse employment action where the Complainant suffered, at most, only temporary unhappiness. The record established that a manager immediately and thoroughly aborted any adverse consequences when he recognized that the matter had not been properly handled by the Complainant's immediate supervisor. McNeill v. Crane Nuclear Inc. , ARB No. 02-002, ALJ No. 2001-ERA-3 (ARB July 29, 2005).

[Nuclear & Environmental Whistleblower Digest XIII D]
ADVERSE ACTION; IMMEDIATE RESCISSION WITH NO IDENTIFIABLE HARM NOT ACTIONABLE

Where a demotion is immediately rescinded and Complainant suffered no identifiable harm as a result, the demotion is not an adverse employment action under the whistleblower provision of the FWPCA. Bostan v. City of Corona , ARB No. 01 034, ALJ No. 2000 WPC 4 (ARB Mar. 31, 2003), citing Griffith v. Wackenhut Corp. , ARB No. 98 067, ALJ No. 1997 ERA 52, slip op. at 10 11 (ARB Feb. 29, 2000).