USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XVI B -- DAMAGES AND REMEDIES, REINSTATEMENT

Employee filed claim with Department of Labor, alleging that his job transfer was the result of deliberate discrimination by employer (TVA) against him due to his participation in the NRC inspection process. The Secretary awarded relief to employee, and ordered that he be reinstated to his former, or comparable, position. Section 5851(b)(2)(B) provides that an aggrieved party shall be reinstated "to his former position." The court stated that in the absence of a clear indication why this language cannot be given effect, the Secretary shall do precisely that on remand. The court further stated that "in any event it would certainly appear that the Secretary or perhaps DeFord, as opposed to TVA, should control the decision whether an alternative job must be found."

DeFord v. Secretary of Labor, 700 F.2d 281, 289 (6th Cir. 1983).

[Nuclear & Environmental Whistleblower Digest XVI B 1]
REINSTATEMENT; PURPOSES TO MAKE WHOLE AND TO PROVIDE DETERRENT

In Hobby v. USDOL , No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the Eleventh Circuit stated: "In addition to making the whistleblower whole again, reinstatement also serves as an important deterrent to other discriminatory acts that might be committed by the offender."

[Nuclear & Environmental Digest XVI B 1]
REINSTATEMENT; INCLUSION OF NEEDED TRAINING FOR RE-ASSIMILATION

In the order of reinstatement in Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB also required Respondent to provide any training needed to re-assimilate Complainant into the company.

[Nuclear & Environmental Digest XVI B1]
REINSTATEMENT; LEVEL AT WHICH REINSTATEMENT SHOULD OCCUR; COMPLAINANT'S BURDEN OF PROOF

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), Complainant argued that he should be reinstated at a higher level based on his prior history of promotions and a tracking of other executive's careers. The ARB held that it is Complainant's burden to prove that his reinstatement should be at a level higher than he occupied when he was terminated, and that a "likelihood of promotion" is the primary test - a standard that involves demonstrating a predictable career path or career ladder. The Board found that Complainant's "historical" approach did not have the more particularized proof that is required. The assumption cannot be made that all "rising stars" in the executive suites will continue to ascend the corporate ladder - rather there must be specific evidence that the complainant himself or herself would have been likely to achieve particular higher-level positions.

The ARB found solid precedent in support of the job tracking method , but found that even under this approach a court must be able to conclude that the plaintiff would have achieved the positions of the employees chosen as comparators or closely similar positions. The ARB found that Complainant had not shown that the persons he sought to compare were appropriate for comparison.

[N/E Digest XVI B 1]
REINSTATEMENT; COMPLAINANT DOES NOT HAVE OBLIGATION TO PRESENT HIMSELF/HERSELF; RATHER RESPONDENT OBLIGED TO MAKE OFFER

In Hoffman v. Bossert , 94-CAA-4 (ARB Jan. 22, 1997), the ALJ erred in denying back pay for a period following Complainant's recovery from surgery on the ground that Complainant had not made himself available for reinstatement with Respondent. The Board stated that Complainant's failure to present himself for reinstatement was irrelevant because Respondent had the obligation to offer reinstatement.

XVI B 1 Reinstatement; possibility of constructive discharge between time of ALJ's recommended decision and Secretary's final decision requires remand for hearing on that issue

In Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995), the Respondent alleged in a reply brief before the Secretary that the Complainant had resigned. The Complainant later acknowledged that he no longer worked for the Respondent. At the time of the ALJ's recommended decision, the Complainant still worked for the Respondent.

Although the Secretary reversed the ALJ's decision, and found that Complainant was entitled to relief under the SDWA, he concluded that reinstatement may not be appropriate. Rather, a new issue of whether the Complainant was constructively discharged required a remand to the ALJ for a determination on that matter.

[Nuclear & Environmental Whistleblower Digest XVI B 2]
REINSTATEMENT; WHERE NO PARTY CONTESTS ALJ'S ERRONEOUS AWARD OF FRONT PAY IN LIEU OF REINSTATEMENT, THE ARB WILL FIND THE ISSUE WAIVED

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), PDF | HTM the Complainant testified that he was wary of returning to his job, but stated that he requested reinstatement. Without extended discussion, the ALJ awarded front pay in lieu of reinstatement. The ARB noted that under applicable law and the record before it, reinstatement would have been the appropriate remedy. However, because neither party raised reinstatement as an issue on appeal, it accepted the ALJ's recommended remedy of front pay.

XVI B 2 Reinstatement of "at-will" employee; front pay as remedy when reinstatement not possible

See Marchese v. Goldsmith, 1994 U.S. Dist. LEXIS 7940 (E.D. Pa. 1994), aff'd without op., 1995 U.S. App. LEXIS 2694 (3d Cir. 1995) (order denying motion for new trial in First Amendment case; related Part 24 action 92-WPC-5), indicating that reinstatement is an appropriate remedy in First Amendment retaliation cases, even where the employment is "at- will." Front pay in lieu of reinstatement may be appropriate if circumstances render reinstatement impossible or inappropriate; the fact that reinstatement was unavailable (in Marchese, the defendant had privatized the waste treatment plant's laboratory, thereby eliminating the plaintiff's position), however, does not trigger a front pay award automatically -- the fact-finder can award compensatory damages only for proven losses that the plaintiff actually suffered. The risk of lack of certainty with respect to projections of lost income, however, are borne by the wrongdoer, not the victim.

[ Editor's note: This is a First Amendment case, case noted only for background.]

REINSTATEMENT; CHANGE IN CORPORATE IDENTITY
[N/E Digest XVI B 2]

In the May Newsletter, the supplemental order regarding remand in Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) was casenoted to the effect that upon the sale of a subsidiary, the company that retained liability would have the obligation to reinstate the Complainant to a substantially similar position. The matter was revisited in Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (ARB June 20, 1996)

The Respondent asked for reconsideration because that ruling had the effect of ordering an entity that was not a party to the current action to reinstate the Complainant. Specifically, the company that sold the subsidiary that employed the Complainant retained the obligation to defend the action and to indemnify the new owner against monetary damages. That company was not a named Respondent. The Board noted that the entity that violated the ERA has the obligation to offer reinstatement to the Complainant, which in this case was the named Respondent. It continued: "If a separate contractual obligation exists that requires another entity to assume [the offender's] reinstatement obligation, the proper means to resolve that dispute is through an enforcement action." Slip op. at 3.

The Board noted that the Department of Labor would not normally be concerned with a private indemnity agreement, but that the Department has the responsibility to enforce the employee protection provision of the CAA and to ensure that a bona fide reinstatement is offered. Observing that the selling company's interests and the offending former subsidiary's interest had diverged on the issue of reinstatement, the Board directed the ALJ on remand to give the selling company notice and an opportunity to be heard on this issue. The Board pointed out to the parties' that back pay liability continues to accrue until a bona fide offer of reinstatement is made.

REINSTATEMENT; CHANGE IN CORPORATE ENTITY
[N/E Digest XVI B 2]

Where the Complainant was employed by a subsidiary of a company that retained the liability on the Complainant's complaint when the subsidiary was sold, the company that retained the liability would have the obligation to reinstate the Complainant to a substantially similar position. Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand).

XVI B 2 Reinstatement as part of 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).

XVI B 2 How to handle situation where former position no longer exists or is no longer available

In DeFord v. Tennessee Valley Authority, 81-ERA-1 (Sec'y Aug. 16, 1984), the Secretary issued an Order on Remand from the Sixth Circuit, see DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), in which he implemented the court's direction to revise DeFord's remedies.

The Secretary directed Respondent to reinstate Complainant to his former position, and stated that "[i]f his former position no longer exists or there is no vacancy, TVA shall apply to the Administrative Law Judge for approval of the job in which it proposes to place DeFord with an explanation of the duties, functions, responsibilities, physical location and working conditions of the job sufficient for the ALJ to determine whether it is comparable to DeFord's former position."

XVI B 3 An Employer is not Entitled to a Full Evidentiary Hearing or Right of Cross-Examination in Response to Secretary's Temporary Interim Reinstatement Order

In a plurality opinion, the Supreme Court reversed the district court's entry of a preliminary injunction against the enforcement of an interim Secretary's order directing the employer to reinstate a discharged employee. The Court found that §405 was not unconstitutional on its face, but rather, required the Secretary only to provide notice to the employer of the employee's allegations, notice of the substance of the relevant supporting evidence, an opportunity to file a written response, and an opportunity to meet with the investigator and present rebuttal witnesses. Due process did not require a full evidentiary hearing or cross-examination of the interviewed witnesses at the investigative stage of the proceeding. Brock v. Roadway Express, Inc., 481 U.S. 252, reversing, in part, Roadway Express, Inc. v. Donovan, 603 F.Supp. 249 (N.D. Georgia 1985) (Justices Rehnquist, Scalia, and White disagreed that the employer had a right to know the identities of the government's witnesses).

[Nuclear & Environmental Whistleblower Digest XVI B 3]
PRELIMINARY ORDER; ALJ'S OBLIGATION TO ISSUE PRELIMINARY ORDER WHERE COMPLAINT IS MERITORIOUS; JURISDICTION LOST ONCE PARTY FILES PETITION FOR ARB REVIEW

In an ERA whistleblower case, where the ALJ finds that the complaint has merit, the ALJ is required under 29 C.F.R. § 24.7(c)(2) (2002) to issue a preliminary order granting interim relief such as reinstatement, back pay, and such other actions as may be necessary to abate the violation B but not compensatory damages.

In Trueblood v. Von Roll America, Inc. , ARB Nos. 03 082 and 03 083, ALJ Nos. 2002 WPC 3 to 6 and 2003 WPC 1 (ARB Apr. 30, 2003), the ARB remanded the case where the ALJ had not issued the preliminary order required under 29 C.F.R. § 24.7(c)(2) (2002), until after the Respondent had already petitioned for ARB review of the Recommended Decision and Order. The ARB questioned whether the ALJ retained jurisdiction once the petition for review had been filed, and therefore remanded the cased for issuance of the preliminary order with leave to Respondents to refile their petitions for review within 10 days of the issuance of the preliminary order on remand.

In McNeill v. Crane Nuclear, Inc. , ARB No. 02 002, ALJ No. 2001 ERA 3 (ARB Dec. 20, 2002), the Respondent filed a motion with the ARB seeking stay of the preliminary relief order. The ARB denied the motion, however, because the ALJ had not issued a preliminary order.

[N/E Digest XVI B 3]
PRELIMINARY ORDER TO BE ISSUED BY ALJ

Amended section 24.7(c)(2) provides that upon issuing a recommended order finding a violation in an ERA case, the ALJ shall also issue a preliminary order providing all the relief specified in paragraph (c)(1) of this section [ i.e. , affirmative relief, such as reinstatement and back pay] with the exception of compensatory damages. This preliminary order shall constitute the preliminary order of the Secretary and shall be effective immediately.

Issuance of preliminary orders upon an ALJ recommended order finding a violation of the ERA whistleblower provision is not new, but up to now, the ARB has handled issuance of the preliminary order. It will now be the ALJ's responsibility. The following ARB orders, which are found on the OALJ Web Site, illustrate how the ARB has implemented the preliminary order requirement:

Boschuk v. J & L Testing, Inc ., 96-ERA-16 (ARB Jan. 14, 1997), illustrates a standard preliminary order.
Smith v. Esicorp, Inc ., 93-ERA-16 (ARB Apr. 3, 1997), illustrates the ARB's refusal to issue a preliminary order for a pre-1992 amendments case.
Varnadore v. Oak Ridge National Laboratory , 94-CAA-2 and 3 (ARB Sept. 6, 1996), illustrates the ARB's holding that the preliminary order should include attorney's fees, and the ARB's order to the attorney to repay the fees once the ARB revised the ALJ's holding in favor of the complainant.
Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB Apr. 8, 1997), illustrates the ARB's preliminary order requiring Respondent to comply with the ALJ's order to expunge and post the Recommended Decision -- but declining to require Respondent to release the ALJ's decision to the press.

[N/E Digest XVI B 3]
PRELIMINARY ORDERS UNDER THE ERA NOT AUTHORIZED FOR COMPLAINTS FILED PRIOR TO OCTOBER 24, 1992

In Smith v. Esicorp, Inc. , 93-ERA-16 (ARB Apr. 3, 1997), the Board denied Complainant's request that the Board issue a preliminary order pursuant to the ERA ordering Respondent to pay attorney's fees and costs because the instant case was filed prior to the 1992 amendments to the ERA. Such preliminary orders were not authorized prior to the effective date (Oct. 24, 1992) of the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123.

[N/E Digest XVI B 3]
PRELIMINARY ORDER UNDER THE ERA; NONPECUNIARY FORMS OF RELIEF

In Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB Apr. 8, 1997), the ALJ found in favor of Complainant and recommended various forms of relief, including (1) expungement of any reference to the adverse action against Complainant from all University files; (2) posting of the ALJ's recommended decision and order on appropriate bulletin boards for a period of not less than 60 days; and (3) release, without comment, of the recommended decision and order to the press. In its preliminary order of relief, the Board ordered Respondent to comply with items (1) and (2). The Board, however, declined to issue a preliminary order on item (3) because it questioned whether it had the authority to order such relief even in a final order.

PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; POST-REINSTATEMENT PERFORMANCE EVALUATIONS AND REFERENCES
[N/E Digest XVI B 3 and XVI G 2 a]

In McNeice v. Northeast Nuclear Energy Co. , 95-ERA-18 and 47 (ARB July 3, 1996), the Board clarified the Secretary's earlier Preliminary Order and Order of Remand, which directed Respondent to correct a 1994 performance evaluation relating to Complainant. The Board stated that the directive only affected that performance evaluation, and not any performance evaluations subsequent to Complainant's reinstatement in 1996. The Board noted, however, that post reinstatement evaluations must not reflect anything other than a fair and accurate evaluation of the Complainant's performance.

In addition, the Board noted that the preliminary order directing Respondent not to give a less than satisfactory reference regarding Complainant, only related to the period up to Complainant's 1996 reinstatement. The Board stated that if Complainant ceases to be employed by Respondent in the future, Respondent is expected to provide a fair and accurate reference of Complainant's performance subsequent to the 1996 reinstatement.

PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; TYPES OF RELIEF ENFORCED
[N/E Digest XVI B 3 and XVI G 2 b]

In McCafferty v. Centerior Energy , 96-ERA-6 (ARB July 15, 1996), the ALJ issued a recommended decision and order in favor of Complainants. The Board issued a Preliminary Order directing Respondent to comply with various forms of relief recommended by the ALJ: reinstatement of Complainants in accordance with certain directives by the ALJ; payment of back pay with interest; removal of denial of access flags from the records of all Complainants. The Board indicated that it would supplement the Preliminary Order once the ALJ issued his recommended supplemental decision and order concerning costs and expenses, including attorney's fees.

The ALJ had ordered reinstatement of one Complainant -- who had been denied access to at least one of Respondent's facilities because of falsification of a self-disclosure questionnaire -- be conditioned on compliance with NRC regulations. The ALJ held that if NRC regulations mandated a professional assessment before reinstatement, that Complainant should be given the opportunity to pursue the assessment. McCafferty v. Centerior Energy , 96-ERA-6 (ALJ June 11, 1996).

XVI. B. 3. Immediate issuance of ERA reinstatement orders

In Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y June 30, 1994) (preliminary order), the ALJ

found that Respondent's failure to consider Complainant Zinn for promotion was retaliatory and that Complainant Morris' demotion also was in violation of the ERA, and
ecommended ordering that the procedures for establishing a promotion committee for Complainant Zinn should be initiated within 10 days of the Secretary's final order, and that Complainant Morris should be reinstated to his former positions within 10 days of the Secretary's final order.

Upon review, but prior to considering the case on its merits, the Secretary noted that the ERA was amended in 1992 to, among other things, require the Secretary to order interim relief as soon as an ALJ issues a recommended decision finding that the complaint has merit. Comprehensive National Energy Policy Act § 2902, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). Pursuant to 42 U.S.C. § 5851(b)(2)(A), therefore, he was required at that time issue "a preliminary order providing the relief prescribed. . . but may not order compensatory damages pending a final order."

The Secretary rejected ALJ's recommended order of remedies to the extent that he delayed implementation until up to 10 days after the Secretary's final order. The Secretary ordered Respondent to comply with the remedies as described in the ALJ's R.D. and O. without further delay.

[Nuclear and Environmental Whistleblower Digest XVI B 4]
REINSTATEMENT; WHERE COMPLAINANT'S POSITION WAS TEMPORARY AND THE JOB NO LONGER EXISTED, FRONT PAY TO THE CONCLUSION OF THE ORIGINAL APPOINTMENT WAS WARRANTED; FRONT PAY FOR POSSIBLE EXTENSION OF APPOINTMENT TOO SPECULATIVE

In Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the ALJ found that reinstatement was no longer an issue because the Complainant's appointment was only for two years, with a possible extension to four years. The Complainant had been fired at the end of his probationary year, and the ALJ ordered the Respondent to pay the Complainant's salary and benefits through the end of his term appointment. On appeal, the Complainant argued that he should have been reinstated long enough for so that the Respondent could have made the decision regarding his continued employment that it would have been required to make absent its retaliatory discharge. The ARB observed that project management at the cleanup site at which the Complainant worked had been transferred to a state office, and that later EPA had taken over clean-up efforts, resulting in the Complainant's job no longer being in existence, and therefore making reinstatement not possible. Noting that front pay may be a remedy when reinstatement is not possible, the ARB agreed with the ALJ's order for the Respondent to pay the Complainant's salary and benefits from the date of his firing until the end of his appointment. The ARB stated that while the Complainant's appointment might have been extended for another two years, front pay beyond the ALJ's award would be purely speculative.

[Nuclear and Environmental Digest XVI B 4]
FRONT PAY; USE OF "ALASKA RULE" TO OBVIATE NEED FOR DISCOUNTING TO PRESENT VALUE

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB June 27, 2007), the ARB granted the Respondent's motion to reconsider its front pay award, arguing that the ARB should have discounted it to present value. On reconsideration, the ARB declined to discount to present value, but did modify the award based on the analysis found in Jackson v. City of Cookeville , 31 F.3d 1354, 1361 (6th Cir. 1994), in which the court affirmed a district court's use of a variation of the "Alaska Rule" � i.e. , a "total offset" approach that obviates the need for discounting by refraining from calculating future salary increases into the front pay award.

[Nuclear & Environmental Whistleblower Digest XVI B 4]
FRONT PAY; DISCOUNT TO PRESENT VALUE

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), PDF | HTM the ARB, although acknowledging that a front pay award is typically discounted to present value, declined to apply a discount rate in the appeal before it because the period of the front pay award had already ended before the appeal was decided and because the Complainant had not yet received his front pay.

XVI B 4 Complainant does not seek reinstatement; ALJ must inquire as to why

When a complainant states at a hearing that reinstatement is not sought, the parties or the ALJ should inquire as to why. If there is such hostility between the parties that reinstatement would not be wise because of the irreparable damage to the employment relationship, the ALJ may decide not to order reinstatement, and may order front pay. If, however, the complainant gives no strong reason for not returning to his former position, reinstatement should be ordered. If reinstatement is ordered, the respondent's back pay liability terminates upon the tendering of a bona fide offer of reinstatement, even if the complainant declines the offer. See Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994). West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995).

[Nuclear & Environmental Whistleblower Digest XVI B 4]
FRONT PAY; CANNOT BE PREMISED ON SPECULATION AS TO COMPLAINANT'S POSITION

In Moder v. Village of Jackson, Wisconsin , ARB Nos. 01 095 and 02 039, ALJ No. 2000 WPC 5 (ARB June 30, 2003), the ARB declined to adopt the ALJ's recommendation of a front pay award where the record failed to support the ALJ's speculation that Complainant quit because of a hostile work environment. After the hearing but before the decision, Complainant had been awarded the position for which he had been earlier passed over. The person who had been awarded the position, to which the ALJ later found Complainant had been denied in part due to retaliation for protected activity, was promoted. Complainant subsequently quit but never placed into the record information concerning the reasons for his leaving the employment. Since he provided no evidence as to why being awarded the position was not a sufficient make whole remedy, together with back pay, the ARB declined to award front pay.

[Nuclear & Environmental Whistleblower Digest XVI B 4]
REINSTATEMENT; PRACTICALITY; JOB AVAILABILITY; ABSENCE FROM FIELD; ANIMOSITY AND HIGH LEVEL POSITION

In Hobby v. USDOL , No. 01 10916 (11th Cir. Sept. 30, 2002) (unpublished) (case below ARB No. 98 166, ALJ No. 1990 ERA 30), the Eleventh Circuit found no error in the ALJ and ARB's reinstatement order. The court found that substantial evidence supported the ALJ's finding that Respondent's witness who testified to her conclusion that Complainant was not qualified for any position at Respondent was not credible because she had omitted several positions from her consideration and ignored much of Complainant's work history.

Respondent argued that Complainant's long absence from the field rendered it impracticable for him to assume a senior management position. The court agreed with the ALJ and the ARB that "[i]t would be patently unfair for [Respondent] to avoid reinstatement because this case has proceeded slowly and, due to the circumstances of his termination coupled with his age, [Complainant] has not been able to find another job in the industry."

The court also rejected Respondent's claim that it was inappropriate to require reinstatement of an employee into a high level managerial position in certain circumstances involving pervasive animosity between the employer and the employee where the court found no evidence of such animosity, observing that all of people involved in retaliation against Complainant no longer worked for Respondent, and that mere hostility attendance to a lawsuit was not normally preclusive of reinstatement.

[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT V. FRONT PAY

In Hobby v. Georgia Power Co. , ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), the ARB detailed the reasons why reinstatement is the presumptive remedy in wrongful discharge cases, but acknowledged that certain circumstances dictate alternative remedies such as front pay. Respondent presented three arguments why reinstatement was not appropriate:

(1) Complainant should not be reinstated to a senior management position because he lacked the skills needed to perform such work and because other corporate executives therefore would not have confidence in his abilities;
The ARB observed that the record plainly showed that Complainant demonstrated a high level of competence and trustworthiness over a period of years with Respondent, and was generally held in high regard prior to his termination. In finding that Complainant's long absence from the corporate suites was not sufficient reason not to order reinstatement, the ARB quoted with approval the ALJ's observation that "Respondent terminated Complainant because of protected activity, and now seeks to benefit from the fruits of its act of wrong doing."

(2) Other managers would not view Complainant as trustworthy after having litigated a whistleblower complaint against the company;

The ARB found that the frictions and inconveniences cited by Respondent were insufficient reason to deny reinstatement.

(3) There is no longer a comparable position within the company to which Complainant can be reinstated.

Although the division that Complainant headed at the time of his termination was disbanded and absorbed into other parts of the company, and the ARB declined to order Respondent to re-institute the division or an equivalent entity, it also found that Respondent and Complainant were both too limited in their approach to the range of positions to which Complainant might be reinstated. The ARB held: "Stated simply, the reinstatement language of the ERA whistleblower protection section does not require that a prevailing complainant be reinstated to the precise position formerly occupied, only to a comparable position; to view the statutory text otherwise would allow an employer to evade reinstatement merely by abolishing or reconfiguring the particular position that a discharged complainant had occupied."

[Nuclear and Environmental Whistleblower Digest XVI B 4]
STIPULATION; ARB WILL HOLD PARTIES TO STIPULATION ABSENT A PROVISION THAT IS CONTRARY TO PUBLIC POLICY

In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB ay 17, 2000), Complainant sought an additional year of front pay because Respondent allegedly did not comply with a verbal agreement to reach promptly a full stipulation as to the damages. The ARB observed that the parties had reached a final stipulation as to damages including front pay and held that absent a provision of a stipulation that is contrary to public policy, the parties will be held to their bargain where they have fairly entered into the stipulation.

[Nuclear & Environmental Digest XVI B 4]
BACK PAY; CUT-OFF DATE WHEN FRONT PAY BEGINS

Where a complainant is not physically able to be reinstated immediately, and therefore front pay is being used as a substitute, back pay liability is cut-off on the date of final judgment because front pay begins at that point. Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000).

[Nuclear & Environmental Digest XVI B 4]
FRONT PAY; DISCOUNT TO PRESENT VALUE

As a payment of future damages, a front pay award must be discounted to present value. Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), citing Michaud & Ass't Sec'y v. BSP Transport, Inc. , ARB No. 97-113, ALJ No. 1995-STA-29 , slip op. at 6 (ARB Oct. 9, 1997), reversed on other grounds sub nom. BSP Trans, Inc. v. United States Dept. of Labor , 160 F.3d 38 (1st Cir. 1998).

[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT; DELAY IN IMPLEMENTATION; AUTHORITY TO ORDER REORGANIZATION OF ENVIRONMENTAL OFFICE; FRONT PAY AS TEMPORARY SUBSTITUTE FOR REINSTATEMENT

In Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ALJ had found that immediate reinstatement of Complainant was not possible because of Complainant's mental condition, even though Complainant had requested reinstatement. Thus, the ALJ's recommended order was that Respondent delay its reinstatement offer for one year from the final judgement and pay front pay during that year. This ruling was predicated on Complainant's physician had prediction that Complainant's condition would significantly improve once he was removed from his stressors.

The ARB declined to adopt the ALJ's finding that Complainant will be able to return to work one year from the final judgment because the evidence on Complainant's current ability to work had become stale. Thus, the case was remanded with instructions to take evidence and make a supplemental recommended decision on this issue.

The ARB agreed with the ALJ that any reinstatement order could not include an order requiring Respondent to reorganize its environmental program such being beyond the DOL's mandate.

The ARB noted that front pay may be used as a substitute when reinstatement is not possible for some reason, and ordered that, if on remand the ALJ determines that Complainant's medical condition will permit reinstatement, but at a future time, the ALJ shall order front pay for the period until reinstatement is possible. On the other hand, if the ALJ finds that Complainant will not be able to be reinstated as Respondent's environmental engineer, he shall order payment of front pay for the period until Complainant is able to obtain other work commensurate with that position.

[Nuclear & Environmental Digest XVI B 4]
REINSTATEMENT; EVENTS OCCURRING AFTER HEARING; PRODUCTIVE AND AMICABLE WORKING RELATIONSHIP

In Jones v. EG & G Defense Materials, Inc. , 1995-CAA-3 (ARB Dec. 24, 1998), Complainant was successful in establishing entitlement to relief under the the employee protection provisions of the Clean Air Act, 42 U.S.C. §7622, the Toxic Substances Control Act, 15 U.S.C. §2622 , and the Resource Conservation and Recovery Act, 42 U.S.C. §6971. Respondent sought reconsideration based upon, inter alia , events occurring after the hearing that allegedly made reinstatement impossible. Upon reconsideration, the ARB noted that under the CAA and the TSCA, reinstatement is an automatic remedy (under the RCRA, it is an option). The ARB observed that "[i]n rare instances, front pay may be used as a substitute for reinstatement where there is 'irreparable animosity between the parties,' Blum v. Witco Chem. Corp . 829 F.2d 367, 374 (3d Cir. 1987), and 'a productive and amicable working relationship would be impossible.' EEOC v. Prudential Federal Sav. and Loan Ass'n , 763 F.2d 1166, 1172 (10th Cir.), cert. denied , 474 U.S. 946 (1985)." Jones , 1995- CAA-3 @ 10. The ARB, however, rejected each of Respondent's arguments as to the impossibility of a productive and amicable working relationship.

Complainant obtained a new job in a different State . The ARB distinguished Title VII authority cited by Respondent because under Title VII, reinstatement is merely optional. The ARB also found it significant that Complainant had submitted an affidavit stating that he still wishes to be reinstated, is willing to move, and believes that an amicable and productive working relationship is possible.

"Difficulties" between Complainant and some subordinates . Respondent argued that "difficulties" existing between Complainant and some of his subordinates in the safety department would prevent a productive working relationship, stressing that "dramatic changes" had been made, including a trebling of employees since Complainant was a manager. The ARB, however, found that the additional employees and changes in the department would tend to diminish the impact of past disagreements between Complainant and his subordinates ( e.g. , the absence of the person responsible for discharging Complainant).

Bumping of current safety manager . The ARB rejected Respondent's objection that reinstatement of Complainant would bump the current safety manager, finding that Respondent is large enough to find work for the displaced safety manager.

Complainant's lack of experience in "hot operations" . Respondent contended that reinstatement was not possible because Complainant lacks experience in "hot operations." The ARB rejected this contention because when Complainant was originally hired, hot operations were to begin in a short time thus, Respondent obviously believed Complainant was competent to manage such operations. The ARB noted Complainant's submission of evidence showing that he has endeavored to stay current, and his statement of eagerness to take any required training. The ARB also noted that it was Respondent's unlawful discharge that caused Complainant's lack of experience.

Complainant's public appearances and participation in lawsuit . Respondent contended that Complainant's public appearances in which he discussed chemical weapons destruction, and his participation as an expert witness in a lawsuit against Respondent, rendered his reinstatement impractical. The ARB found this contention "very troubling," finding that Complainant's participation in a lawsuit concerning the environmental dangers of Respondent's facility "is exactly the type of activity that the environmental acts protect." Id . @ 11 (footnote omitted). The ARB also dismissed Respondent's contention that Complainant's testimony and press contacts were unprotected personal attacks on the character of Respondent's employees, although it conceded that reinstatement could be properly denied "in situations where an employee's public criticism of the employer and co-workers is highly personalized and inflammatory...." Id . @ 11. The ARB found that Complainant's statements merely faulted Respondent's facility's safety, which is his protected right under the environmental acts.

[Nuclear & Environmental Digest XVI B 4]
SINCE REINSTATEMENT IS MANDATORY, DISCUSSION OF FRONT PAY ALTERNATIVE NOT NECESSARY

In Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ARB Sept. 29, 1998), the ALJ had made an alternative finding that in the event Respondent failed to reinstate Complainant, it must pay front pay of $499,469. See Jones v. EG & G Defense Materials, Inc. ,1995-CAA-3 (ALJ Aug. 1, 1997) The ARB, however, held that because its reinstatement order is mandatory, front pay need not be discussed.

[N/E Digest XVI B 4]
FRONT PAY VERSUS REINSTATEMENT

In Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24 (ALJ Dec. 1, 1997), the ALJ had, in an earlier decision, found that reinstatement was not appropriate under the factual scenario, and had recommended front pay instead. The Deputy Secretary (the Secretary having recused himself), however, had found that the front pay award was not appropriate because "the observed tension between the parties at the hearing is not sufficient to demonstrate the impossibility of a productive and amicable working relationship in this case." Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24, slip op. at 18 (Dep. Sec'y Feb. 14, 1996).

In the instant remand proceeding, Complainant presented additional evidence and argument on the reasonableness of reinstatement. In addition, the ALJ concluded that the Deputy Secretary's standard for evaluating the reinstatement/front pay issue had been overruled in Michaud v. B.S.P. Transport , ARB No. 96-198 (Jan. 6, 1997), which adopted a reasonable person standard to evaluate a complainant's decision to refuse to accept a bona fide offer of reinstatement. The ALJ reviewed the circumstances, concluded that no reasonable person would accept reinstatement, and indicated that under Michaud , it was reasonable for Complainant to receive front pay rather than reinstatement.

Nonetheless, the ALJ found that he was constrained to follow the Deputy Secretary's ruling rejecting the ALJ's earlier award of front pay and remanding the case for the limited purpose of determining back pay and other specified damages. The ALJ indicated that another forum would have to resolve whether the original recommendation of front pay was proper under the new Michaud reasonableness test.

[N/E Digest XVI B 4]
FRONT PAY; DETERMINATION OF START DATE WHERE COMPLAINANT NEEDS THERAPY/EDUCATION TO RE-ENTER WORKFORCE

In Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Nov. 26, 1997), the ARB sought to clarify when front pay begins when Complainant alleges that he was unable to obtain counseling and education necessary to reenter the job market because Respondent had not paid the compensatory damage award.

The ARB began by observing that in antidiscrimination cases, back pay usually ends and front pay begins at the close of trial or at the time of the court's judgment, although special circumstances may dictate a different time.

The ARB noted, for example, that it had recently held in Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), that a back pay award ended and the front pay period began at the time the respondent made a bona fide offer of reinstatement. In Michaud , the ARB had found that the unlawful discharge caused the complainant's major depression, and therefore the complainant reasonably declined the offer of reinstatement, and the declination did not cut off entitlement to back or front pay. The complainant in Michaud had already undergone eight months of therapy at the time of the hearing, and the therapist opined that additional therapy was needed to rehabilitate the complainant for work. The ARB stated that since the therapy was already underway at the time of the hearing, it determined that a two year rehabilitation period began at the close of the hearing.

In Doyle , the ARB had found in its original decision on the merits that Complainant was entitled to five years of front pay based on evidence that it would take approximately that amount of time in therapy to make him employable. Complainant argued before the ARB that he had not yet begun the necessary therapy at the time of the hearing, but maintained that he had been prevented in this regard by poverty wrought by Respondent's discriminatory conduct.

The ARB held that to the extent that Respondent's failure to pay the monetary damages prevented Complainant from obtaining the necessary therapy and training, the front pay period would not be payable until the date the award was enforceable against Respondent. The ARB remanded for findings by the ALJ whether Complainant had engaged in any therapy, education or training, and if not, whether Complainant lacked the necessary funds.

If Complainant lacked the necessary funds, the back pay period would end, and the front pay period begin, upon issuance of a final, judicially reviewable ARB decision. If, however, the ALJ finds that Complainant has begun to obtain therapy and education/training, or that Complainant had the financial means to do so but did not, the back pay period ended and the front pay period began upon the issuance of the ARB's earlier decision on the merits.

REMEDIES; REINSTATEMENT NOT FEASIBLE; FRONT PAY; HOW TO DETERMINE LENGTH AND AMOUNT OF FRONT PAY AWARD
[N/E DIGEST XVI B 4]

In Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996), reinstatement of Complainant was not practical due to a corporate reorganization, so Complainant was entitled to front pay. The Board rejected the ALJ's reasoning that five years of front pay was appropriate due to Complainant's age of forty years. Rather, the Board determined that five years of front pay was reasonable based on a psychologist's testimony indicating that Complainant was not likely to find permanent employment in the next five years. Five years was estimated to be the amount of time necessary to make Complainant employable again through psychotherapy, training and education.

The Board held that front pay is calculated by determining the present value of the future earnings that a complainant would have earned, and then subtracting the anticipated future earnings. In addition, the Board held that it is necessary to determine the present value of both income streams using an appropriate discount rate. The Board did not suggest an appropriate discount rate, but requested that the parties to agree to such; if no agreement can be reached, a remand to the ALJ was anticipated.

[Editor's note: To my knowledge, this is the first decision in which either the Secretary or the Board adopted an ALJ's recommendation of front pay. See Boytin v. Pennsylvania Power & Light Co. , 94-ERA-32 (Sec'y Oct. 20, 1995)(noting that Secretary had not yet ruled on the appropriateness of front pay).]

REINSTATEMENT; MERE FACT OF FIRING DOES NOT ESTABLISH IMPOSSIBILITY OF NORMAL WORKING RELATIONSHIP
[N/E Digest XVI B 4]

The mere fact that the respondent fired a whistleblower does not establish the impossibility of a normal working relationship between the parties; reinstatement is the normal remedy for whistleblowers. See Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24 (Dep. Sec'y Apr. 10, 1996) (supplemental order regarding remand).

DAMAGES; FRONT PAY; ALJ'S OBSERVATIONS AT HEARING
[N/E Digest XVI B 4]

In Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y Feb. 14, 1996), the Deputy Secretary discussed the caselaw concerning front pay as a substitute for reinstatement where the trier of fact finds that a productive and amicable working relationship would be impossible because of animosity or tension between the parties or reduction of the employer's workforce. The Deputy Secretary found that front pay was not an appropriate substitute in the instant case, notwithstanding the ALJ's finding of manifest tension in the courtroom between the Complainant and his former supervisors, colleagues, and coworkers. The Deputy Secretary wrote that "observed tension between the parties at the hearing is not sufficient to demonstrate the impossibility of a productive and amicable working relationship."

FRONT PAY WHERE REINSTATEMENT DOES NOT APPEAR TO BE IN THE COMPLAINANT'S BEST INTERESTS
[N/E Digest XVI B 4]

In Boytin v. Pennsylvania Power & Light Co. , 94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary noted that he had not yet ruled on the appropriateness of an award of front pay in whistleblower cases where reinstatement does not appear to be in the complainant's best interests. He noted that the issue in now pending before him in Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24, in which the ALJ recommended front pay.

REMEDIES; TRANSFER WHERE HOSTILE WORKING CONDITION LIKELY TO PERSIST
[N/E Digest XVI B 4]

In Boytin v. Pennsylvania Power and Light Co. , 94-ERA-32 (Sec'y Oct. 20, 1995), the Secretary concluded that, given the hostile working conditions and degree of animus felt at the Respondent's Susequehana facility against the Complainant for his protected activity, the Respondent should honor the Complainant's request for a transfer to another facility within a 30 mile radius of the his home, with equivalent pay and supervisory group responsibilities, if possible.

XVI B 4 Front pay

Recognizing that reestablishment of the employment relationship is not always a feasible remedy in a discrimination case, the Secretary nevertheless declined to award front pay where the record indicated that a productive and amicable working relationship would be possible were Complainant to return to work. The Secretary did not decide whether section 210 of the Energy Reorganization Act authorizes an award of front pay in appropriate cases. McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).

XVI B 4 Front pay in lieu of reinstatement

In Simmons v. Florida Power Corp., 89-ERA-28 and 29 (ALJ Dec. 13, 1989) (supplemental decision ALJ Apr. 11, 1990), dismissed on review by the Secretary based on settlement agreement in decision consolidated with 88-ERA-28 and 30, Simmons v. Fluor Constructors, Inc., 88-ERA-28 and 30 and 89-ERA-28 and 29 (Sec'y June 28, 1991), the ALJ found it appropriate to award front pay in lieu of reinstatement based on Fifth and Eleventh Circuit authority, despite the difficulty in predicting the extend of future employment. See Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir. 19xx), cert. denied, 474 U.S. 1005 (1985); Hansard v. Pepsi-Cola etropolitan Bottling Co., 865 F.2d 1461 (5th Cir. 19xx), cert. denied, 58 U.S.L.W. 3216 (1989); Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985). It was noted that front pay may be particularly appropriate where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy. Goldstein, 758 F.2d at 1449.

XVI B 5 a Reinstatement

Although the Secretary's Order in June 1988 required the employer to reinstate Complainant, the Secretary no longer required reinstatement where the evidence presented at the hearing on remand revealed that Complainant had been hired only for the duration of project from which he was unlawfully terminated. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

XVI B 5 a Completion of job

In Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993), the ALJ's order of reinstatement was deleted by the Secretary where the Complainant's employment was as a construction workers for a contractor hired during the construction of the nuclear plant, which employment would have ended with completion of the plant construction. The ALJ had ordered that if the construction had been completed, Respondent must employ Complainant in another position within his capabilities and comparable in terms of pay, privileges and benefits.

The Secretary has adopted for ERA cases the "long accepted rule of remedies in labor law that the period of an employer's liability ends when the employee's employment would have ended for reasons independent of the violation found." See Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991), slip op. at 4. See also Francis v. Bogan, 86- ERA-8 (Sec'y Apr. 1, 1988), slip op. at 6.

XVI B 5 b Complainant entitled to retention only to date of lay off

In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the Deputy Secretary approved the following remedies which were recommended by the ALJ: 1) reinstate and pay Complainant as if he never had been laid-off; 2) cross-certify Complainant in additional procedures missed because of layoff; 3) cease all discrimination against Complainant; 4) retain Complainant as long as Respondent employs others in that capacity; and 5) pay Complainant back-pay, attorney fees, and costs.

The Deputy Secretary, however, remanded the case to the ALJ to determine whether the Complainant would have been laid-off any way at a later date. If it can be shown that the Complainant would have been laid-off anyway back-pay would be cut off at that point, and Complainant would not be entitled to be retained until all other inspectors have been laid off.

[N/E Digest XVI B 5 b]
RESPONDENT'S TERMINATION OF QUALITY ASSURANCE/QUALITY CONTROL DIVISION; EFFECT ON BACK PAY/REINSTATEMENT LIABILITY

Where Respondent had been sold and relocated, and its quality assurance/quality control (QA/QC) business effectively eliminated, all persons involved in the QA/QC functions laid off, and there was no substantially similar position for which Complainant is qualified under the new business structure, the ALJ recommended a holding that Respondent's liability for back pay and reinstatement terminated on the date Respondent's QA/QC was ended. In making this determination, the ALJ took into consideration whether QA/QC employees would have had transfer rights, and the Deputy Secretary's holding in a remand order that Respondent's decision to withdraw from the QA/QC business and to lay off staff was a legitimate business decision. Creekmore v. ABB Power Systems Energy Services, Inc. , 93-ERA-24 (ALJ Dec. 1, 1997).

XVI B 5 b Complainant would have been laid off anyway

In Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Nov. 18, 1993), the Secretary had found in an earlier decision that Complainant was a permanent employee prior to his layoff -- but that finding did not resolve the issue of entitlement to reinstatement. The Secretary adopted the ALJ's determination on remand that Complainant would have been laid off no later than May 30, 1987. The record indicated that Complainant was already slated for layoff prior to engaging in protected activity, and therefore it was not appropriate to order Respondent to reinstate Complainant.

XVI B 5 b Reinstatement not required when credible evidence establishes that complainant was slated for a layoff

In Bechtel Construction Co. v. Secretary of Labor, No. 94-4067 (11th Cir. Apr. 20, 1995) (available at 1995 U.S. App. LEXIS 9029) (case below 87-ERA-44), the Secretary's finding that reinstatement was not appropriate because there was credible evidence that the Complainant was going to be laid off at the end of an outage was affirmed, despite the fact that the Secretary had rejected that reason for the action taken in the liability portion of the case.

The Complainant was laid off from a temporary assignment for discriminatory reasons unrelated to the anticipated lay off after the outage.

XVI B 5 c Employee who falsified original application

In Atchison v. Brown & Root, Inc., 82-ERA-9 (Sec'y June 10, 1983), reversed on other grounds sub nom., Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), dismissed on remand (Sec'y Apr. 12, 1985), it was discovered that Complainant had misrepresented his educational qualifications for the job. The Secretary found that Respondent would have discharged Complainant as soon as it discovered the misrepresentation even if he had not engaged in protected activity. The Secretary stated that "[f]iling a complaint under the ERA, and even proof that the firing itself was improperly motivated, should not insulate [Complainant] from other, legitimate, management actions. Therefore, I do not think it would be appropriate, under my authority to order affirmative action to abate a violation found (29 C.F.R. 24.6(b)(2)), to require reinstatement of an employee who repeatedly misrepresented material facts about his background, or to order back pay beyond the date of discovery of the misrepresen- tation."

[Editor's note: It is not clear from either the Secretary or the ALJ's decisions how Respondent discovered the misrepresentation, but it was a couple months after Complainant was discharged. In this case, Respondent apparently did not advance an "after acquired evidence" defense for its burden of articulation, but only in regard to the extent of damages.

On appeal, the Fifth Circuit ruled that Complainant's internal complaints did not support an ERA employee protection complaint. Although the Secretary dismissed Atchinson's complaint on remand, in subsequent Fifth Circuit cases, the Secretary has declined to acquiesce in Brown & Root .]

XVI B 5 e Lapse of eligibility

See Pope v. Transportation Service, Inc., 88-STA-8 (ALJ May 19, 1988), adopted (Sec'y Sept. 13, 1988) (STAA case; complainant who is no longer qualified to work is not entitled to reinstatement; complainant had lost his driver's license).

XVI B 5 e Refusal of reinstatement

Refusal of an unconditional offer of reinstatement to a substantially equivalent position constitutes a breach of the obligation to mitigate damages. Thus, in Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the Complainant was entitled to back pay only until the date he declined to return to work.

XVI B 5 e Reinstatement

Absent special circumstances, the employee's rejection of employer's reinstatement offer ends his or her entitlement to reinstatement. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991).

XVI B 6 Stay on order during appeal to Court of Appeals

Where an administrative law judge ordered an employer to reinstate a weld inspector on the ground that the employee had been discharged for engaging in activity protected by the ERA in violation of 42 USC § 5851(e), and his recommended Decision and Order were adopted in their entirety by the Secretary of Labor, and application for stay of the reinstatement order under Rule 18, of the Federal Rules of Appellate Procedure "shall ordinarily be made on the first instance to the agency." Since the Secretary would certainly have denied a request for stay of the order pending review by the Court of Appeals, it would have been an exercise in futility to apply to the agency for a stay, and therefore Rule 18 is satisfied. Nevertheless, the court found that a stay was not warranted because the employer failed to persuade the court that it would suffer irreparable harm from being forced to continue one weld inspector in its employ for a few months while its petition for review is under consideration by the court. Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67 (7th Cir. 1983).

[Nuclear & Environmental Digest XVI B 6]
STAY PENDING JUDICIAL REVIEW; STANDARD

In Jones v. EG & G Defense Materials, Inc. , 1995-CAA-3 (ARB Dec. 24, 1998), the ARB held that three criteria ordinarily are used when considering a request for a stay: the likelihood that the movant will prevail on the merits, whether the movant will suffer irreparable injury in the absence of a stay, and whether a stay is in the public interest. In the instant case, the ARB denied a stay, declining to rule on a Constitutional argument proffered by Respondent, and finding that Respondent was unlikely to prevail on the merits (observing that the ARB had affirmed the ALJ's recommended order); finding that a stay would prolong the stigma and otherwise frustrate the public purpose of restoring a successful complainant to the status enjoyed prior to the statutory violation; and essentially finding that the alleged irreparable harm (such as causing another employee to be bumped from his position) was not credible or was the fault of Respondent rather than Complainant.

STAY OF PRELIMINARY ORDER OF RELIEF UNDER ERA
[N/E Digest XVI B 6; XVI C 1 d]

In McCafferty v. Centerior Energy , 96-ERA-6 (ARB Oct. 16, 1996), Respondents sought an order staying a preliminary order that Respondent comply with the relief ordered by the ALJ in his Recommended Decision and Order. The Board, noting that this matter was a bit unusual in that it involves a preliminary agency order rather than a final order, applied the four part test of State of Ohio ex rel. Celebrezze v. N.R.C. , 812 F.2d 288, 290 (6th Cir. 1987) in denying the motion. The Board found neither a strong or substantial likelihood of success by Respondent on review of the merits, no strong showing of irreparable harm ("mere" financial loss of back pay not sufficient to establish irreparable harm; Complainants not shown to be judgment proof; since power plant is not currently in outage, unlikely that Complainants would be immediately reinstated), but a strong public interest in favor of preliminary orders in ERA cases.

XVI B 6 Request for stay of Order to reinstate and reimburse back pay

In Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec'y June 4, 1992), the Respondent requested a stay of the Secretary's final order to reinstate the Complainant and to pay him back pay with interest pending review by the United States Court of Appeals for the Third Circuit. The Secretary denied the request, holding that neither a mere possibility of success on appeal nor certain economic loss in the interim is sufficient to warrant a stay.

XVI B 6 Stay denied

In Goldstein v. Ebasco Constructors, Inc., 86-ERA- 36 (Sec'y Aug. 31, 1992) (order denying stay), the Respondent moved for a stay of the Secretary's Decision and Order pending review by the United States Court of Appeals. The Secretary denied the stay were the motion raised no more than a possibility that it will succeed on the merits and alleged harm only from the financial costs and burden of employing the Complainant during the pendency of the appeal. Neither the mere possibility of success on appeal nor certain economic loss in the interim is sufficient to warrant a stay. [Citations omitted] Other factors warranting a stay, such as the prospect of harm to others which could result from a stay and the public interest at stake, were considered by the Secretary and found not to support a stay in this matter.

XVI B 6 Need for stay from agency under FRAP 18

Employer moved for stay pending review of an order of the U.S. DOL requiring employer to reinstate "contract employee" on ground that employee had been discharged for engaging in activity protected by ERA. The court held that Rule 18 of the Federal Rules of Appellate Procedure requiring an application to the agency for a stay before asking the appellate court for one is flexible and is not intended to apply in a case where the application would be an exercise in futility. However, the court denied the stay in this case because employer failed to show that it would suffer irreparable harm from being forced to continue one weld inspector in its employ for a few months while its petition for review is under consideration by that court. Commonwealth-Lord Joint Venture v. Donovan, 724 F.2d 67, 68 (7th Cir. 1983) (holding that the standard for deciding stays of administrative actions is same for stays in district court actions as set forth in Adams v. Walker, 488 F.2d 1064 (7th Cir. 1973)).

XVI B 7 Interference with future job prospects

Where the ERA whistleblower violation was committed by a former employer who interfered with the complainant's prospects of future employment, because of the indirect employment relationship, reinstatement is inappropriate. Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995).

RELIEF; DENIED CONSIDERATION FOR PROMOTION
[N/E Digest XVI B 7]

In Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), it was found that one Complainant had been denied consideration for promotion to Senior Research Scientist based on discriminatory retaliation for protected activity by his employing University. The Secretary ordered the University to establish a committee to consider that Complainant's suitability for promotion under terms set by the ALJ's recommended order. The ALJ had recommended that the committee be comprised only of scientific peers not previously involved in the DOL proceeding as witnesses or an underlying NRC investigation. The committee was to be selected by an official also without previous involvement in the matter. The ALJ directed that if the University could not find a suitable official to set up the committee, it shall arrange for the selection to be made by a suitable official from another university or scientific institution. See Zinn v. University of Missouri , 93-ERA-34 and 36, slip op. at 43 (ALJ May 23, 1994). The Secretary, consistent with the ALJ's recommendation, ordered that if the committee found the Complainant suitable for promotion, he should be promoted and provided appropriate back pay with interest.

NONSELECTION; REMEDY
[N/E Digest XVI B 7]

In Frady v. Tennessee Valley Authority , 92-ERA- 19 and 34 (Sec'y Oct. 23, 1995), the Secretary found that the Complainant had been discriminated against in violation of Section 210 of the ERA when he was not selected for hire for several positions. The Respondent was ordered to offer the Complainant those positions or comparable positions, to pay back pay from the date the Complainant would have started to the actual appointment or Complainant's refusal of such offer, other appropriate compensation (the case was remanded for a determination by the ALJ), and costs and expenses.

XVI. B. 7. Job applicant

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Secretary ordered the Respondent to promote Complainant to a position for which she was denied based on reasons established to be pretext for discrimination. The Secretary also ordered back pay from the date of denial of the promotion.

XVI B 7 Job Applicant

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (Sec'y Mar. 30, 1994), the Secretary held that Respondent violated the ERA when it declined to hire a complainant who refused to sign a release in a form authorizing Respondent to conduct a background check on Complainant. Complainant had previously engaged in whistleblowing. The release, in the Secretary's view, had the purpose of releasing Respondent from a claim that information had been provided or used to deny Complainant employment because of protected activities under the ERA -- Complainant would have waived his right to file a complaint of illegal blacklisting.

In Doyle , the Secretary reviewed analogous cases under the Fair Labor Standards Act and Title VII of the Civil Rights Act of 1964. In addition, the Secretary concluded that the release could not have been raised as a defense in an ERA employee protection case because recognition of such a release "could nullify the Act and Congressional intent to protect public health and safety by prohibiting retaliation against those who report potential safety hazards in the construction and operation of nuclear power plants." Slip op. at 6.

The Secretary ordered Respondent to extend an offer of employment to Complainant as a senior technician or similar comparable position, and pay Complainant back pay, with interest, less interim earnings from November 21, 1988 to the date of hire or the date of the offer of employment is Complainant declines the offer.

XVI. B. 7. Job applicant

XVI B 8 Benefits and privileges of employment

REINSTATEMENT; BENEFITS AND PRIVILEGES; INCLUSION OF SPECIFIC ITEMS SUCH AS HOURS AND CHAIN OF COMMAND
[N/E Digest XVI B 8]

In Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995), Complainant's reinstatement was to include all benefits and privileges he formally enjoyed, including specifically "the same hours of work and not being required to report in any way to the Director of Nursing." Slip op. at 9.

XVI B 9 Outage Workers; right to "reinstatement"

[N/E Digest XVI B 9]
OUTAGE WORKERS; RIGHT TO "REINSTATEMENT"

In McCafferty v. Centerior Energy , 96-ERA-6 (ARB Sept. 24, 1997), several Complainants, who were contract outage workers, had been barred from work at Respondents facilities due to unlawful retaliation under the ERA. The ARB determined that whatever "reinstatement" rights the Complainants had, they had become moot with the passage of time because the outages during which Complainants were entitled to be placed had ended. The ARB held that: "In any event, Complainants do not have an enduring right to be placed at [Respondent's] projects; what they do have is a right, protected by order of this Board (in both the Preliminary Order and this Order), not to be barred from work at [Respondent's] nuclear projects in retaliation for their protected activity." The ARB held that there were now no positions to which Complainants were entitled to be "reinstated."

Complainants were made whole because denial of access flags were removed, they received back pay for the period they were unlawfully barred, and they are now eligible for future placement at Respondent's facilities.