DIVISION XIX -- DENIAL OF RELIEF WHEN COMPLAINANT ENGAGES IN DELIBERATE SAFETY VIOLATION
[Last updated March 12, 2012]
In Siemaszko v. First Energy Nuclear Operating Co. Inc. , ARB No. 09-123, ALJ No. 2003-ERA-13 (ARB Feb. 29, 2012), the ALJ granted the Respondent's motion for summary decision dismissing the Complainant's ERA whistleblower complaint pursuant to the affirmative defense provided by Section 211(g) of the ERA, 42 U.S.C.A. § 5851(g). Section 211(g) provides that the employee protection provision of the ERA, 42 U.S.C.A. § 5851(a), "shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended. [42 U.S.C. § 2011 et seq.]." The Complainant had been found guilty by a jury on three criminal counts related to violations of 18 U.S.C. §§ 1001 and 1002 for knowingly and willfully concealing and covering up, and causing to be concealed and covered up material facts in a matter within the jurisdiction of the NRC, and knowingly and willfully making, using, and causing others to make and use a false writing knowing that it contained material statements, which were fraudulent, to the NRC. See U.S. v. Siemaszko, 612 F.3d 450 (6th Cir. 2010). The ALJ found that the criminal convictions did not resolve the exact issue in § 211(g), but they did resolve dispositive facts that established a violation of the ERA and the AEA. On appeal the ARB found that the criminal convictions resolved two of the three elements of the § 211(g) defense, but that genuine issues of fact remained on the third element. The three elements of a § 211(g) affirmative defense are that (1) the complainant caused a violation of the ERA or AEA; (2) the violation was deliberate; and (3) the conduct occurred without the employer's direction.
The ARB noted that it would review the appeal "cognizant of the need to exercise caution in application of the § 211(g) affirmative defense to avoid undermining the broader remedial purpose of the statute. The applicability and impact of the § 211(g) defense must be analyzed case-by-case based on the specific facts of each case." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 12. The ARB then considered whether the doctrine of collateral estoppel prevented the relitigation of the relevant legal or factual issues. Because the final judgment in the case was a general guilty verdict, the record in the first litigation needed to be reviewed.
The ARB found that notwithstanding the general guilty verdicts, collateral estoppel applied to both the first two elements of the § 211(g) defense - there was no question that the Complainant had been convicted of illegally misrepresenting to or concealing from the NRC material facts or illegally causing someone else to misrepresent or conceal such material facts - and found guilty of deliberately participating in the efforts to deceive the NRC. Thus, collateral estoppel applied to these elements.
The ARB found, however, that an evidentiary hearing is required to determine whether the Complainant acted without the Respondent's direction. The ARB noted that it had previously ruled that "direction" could be expressed or implied; but that the "mere presence" of a supervisor during the illegal conduct is not enough; and that negligent management oversight may not be enough. The ARB stated that in keeping with the liberal application of whistleblower protections, "the overriding consideration is whether the employer was sufficiently involved such that a reasonable factfinder could conclude that there was expressed or implied 'direction' or 'pressure' on the complainant to commit the acts that led to the violation of the ERA or AEA." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 17. The ARB found that as the moving party, the Respondent had failed to demonstrate that there was no genuine issue of material fact on the question of whether the Complainant had acted of his own volition, and that there was ample evidence in the record to raise a genuine issue of material fact as to whether the Respondent directed the Complainant to violate the Acts. For example, the Complainant's supervisor had been convicted of participating in the same criminal fraud committed against the NRC, and in fact a team of the Respondent's employees had been indicted, convicted, or signed a deferred prosecution agreement. It was undisputed that the Complainant had prepared initial drafts and/or assisted in drafting responses to the NRC upon the Respondent's request. There was an overwhelming amount of evidence in the record supporting the inference that the Respondent and its employees operated with the singular goal of keeping the Plant open despite an NRC Bulletin that made a shutdown was a real threat, and the responses to the NRC were obviously written to avoid such a shut down. There was evidence that the Complainant's entire management chain was familiar with the problem raised by the NRC. The Complainant submitted evidence that all of the responses to the NRC were subject to an interactive process of review, revision, and editing by a number of individuals, many of whom were his superiors and/or supervisors.
One member of the ARB wrote separately, concurring with the remand, but disagreeing that collateral estoppel should be applied to the first two elements of the § 211(g) defense given the difficulty of applying collateral estoppel in the context of a prior criminal trial where only a general verdict was issued. The concurring member also pointed out that under a strict reading of § 211(g), "a relatively insignificant or technical violation of a procedural regulation under the Acts would deprive a whistleblower complainant of his cause of action as readily as the most intentional and egregious misconduct," Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 25, and that this could not have been what Congress intended. Consequently, the concurring member recommended applying § 211(g) in the same manner as the treatment of "after acquired evidence" under McKennon v. Nashville Banner Pub. Co. , 513 U.S. 352 (1995). Thus, "a finding of deliberate misconduct by a complainant under § 211(g), would not completely bar [a complainant's ] retaliation cause of action but might affect any damages otherwise available." Siemaszko , ARB No. 09-123, USDOL/OALJ Reporter at 26.
[N/E Digest XIX]
SECTION 211(g) AFFIRMATIVE DEFENSE
In Fields v. Florida Power Corp. , 96-ERA-22 (ARB Mar. 13, 1998), Complainants' were found not to be entitled to whistleblower protection under section 211 of the Energy Reorganization Act, 42 U.S.C. § 5851, because they deliberately caused a violation of the ERA, and therefore were barred from protection by section 211(g).
In finding that section 211(g) applied, the ARB considered that Complainants acted without direction from Respondent, and with reckless disregard for whether their acts would cause a violation. Complainants had deliberately conducted two unauthorized evolutions, not required by plant conditions, for the purpose of gathering data to resolve safety issues that Complainants believed had not been adequately addressed by Respondent. The NRC in a Notice of Violation, although acknowledging that the Complainants had exposed errors, found that the unauthorized evolutions were a violation of the operator's license.
Employer's direction; implied authority
In regard to the finding that Complainants acted without direction, Complainants acknowledged that Respondent had not expressly directed them to conduct the evolutions, but argued that they acted under implied authority and therefore with the employer's direction. The ARB rejected this argument, finding lack of support in Complainants' contention that the NRC Notice of Violation had found implied authority or that Employer had acquiesced in similar conduct in the past. The ARB also rejected Complainant's theory that the duty under their operator's license "to protect the public and to assist in maintaining the plant at optimum safety levels" authorized their obtaining hard data to highlight the problem. The ARB found, rather, that there were other methods for bringing such concerns to higher managers or to the NRC, and therefore the duty to protect the public did not constitute implied authority to conduct the evolutions.
Meaning of "deliberately causes a violation"
The ARB discussed whether section 211(g) contains an element of willfulness -- concluding that it does -- and whether section 211(g) requires specific intent -- concluding that it does not. Thus, the ARB held that "to establish a valid Section 211(g) defense, a respondent must show that a complainant willfully or recklessly caused a violation of the ERA or the Atomic Energy Act, that is, that the complainant acted with knowledge or with reckless disregard of whether his or her act would cause a violation." 96-ERA-22 @ 13. The ARB concluded that Complainants did not have actual knowledge that the evolutions would cause a violation of the ERA or the Atomic Energy Act. Nonetheless, because Complainants could have brought their concerns to higher level managers and to components of the NRC, the ARB concluded that they had acted recklessly. The ARB also considered in making this conclusion that, Complainants, if they sincerely believed that their actions were consistent with procedures encouraged by Respondent, could have easily sought approval for the evolutions; that Complainants were well aware of the danger; that the NRC, although acknowledging Complainants' acts had a salutary effect, concluded that this effect did not excuse the risk taking; and that "[n]uclear power is 'one of the most dangerous technologies man has invented.' Rose v. Secretary of Labor , 800 F.2d 563, 565 (6th Cir. 1986) (Edwards, concurring)." 96-ERA-22 @ 14.
[Nuclear and Environmental Whistleblower Digest XIX]
DELIBERATE VIOLATION; BURDEN OF PROOF
In ERA whistleblower cases, an employee "who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended" forfeits his or her whistleblower protection. 42 U.S.C.A. § 5851(g). This is an affirmative defense on which the employer bears the burden of proof by a preponderance of the evidence. In Hibler v. Exelon Generation Co., LLC , ARB No. 05-035, ALJ No. 2003-ERA-9 (ARB Mar. 30, 2006), PDF the ARB agreed with the ALJ's finding that the Employer had proved by a preponderance of the evidence that the Complainant's false certification of weld inspections had been without direction from his employer, and had been a deliberate violation of NRC regulations promulgated pursuant to the ERA and the Atomic Energy Act. Thus, the Complainant was precluded from relief under the ERA whistleblower provision. The ARB agreed with the ALJ that, in view of this finding, it was not necessary to determine whether the Complainant had established a violation of the ERA whistleblower provision.
[Nuclear and Environmental Whistleblower Digest XIX]
COMPLAINANT'S DELIBERATE VIOLATION OF ERA PRECLUDES LITIGATION OF HIS ERA WHISTLEBLOWER CLAIM
In Hibler v. Exelon Generating Co., LLC , 2003-ERA-9 (ALJ Dec. 15, 2004), the Respondent's closing brief asserted that the Complainant was precluded from pursuing his claim because he deliberately engaged in a violation of regulatory requirements by knowingly falsifying weld inspection records, presenting in support of this assertion an NRC Report. The ALJ agreed with the Respondent's contention, finding that the Complainant was ineligible for the whistleblower protections of the ERA because the preponderance of the evidence showed that he deliberately caused a violation of the Act and/or the Atomic Energy Act. See 42 U.S.C. 5851(g); 29 C.F.R. § 24.9; Fields v. Florida Power Corp. , 1996-ERA-22, n.3 (ARB Mar. 13, 1998); James v. Ketchikan Pulp Co. , Case No. 1994-WPC-4 (Sec'y Mar. 15, 1996), slip op. at 6. The ALJ therefore made no findings regarding the merits of the claim, and recommended that the ARB dismiss the complaint.
In making this finding, the ALJ observed that it was the Respondent's burden to establish section 5851(g) ineligibility by a preponderance of the evidence. The ALJ found that the three relevant questions were:
(1) Did the Complainant violate the ERA or the Atomic Energy Act ? The evidence of record and the NRC's report established this element.
(2) Did the Complainant do so deliberately ? The ALJ cited ARB authority to the effect that the Respondent must show that the complainant acted with knowledge or with reckless disregard of whether his or her act would cause a violation. Fields, supra . The ALJ conceded that this was a difficult determination to make, but after thoroughly reviewing the testimony and documentary evidence from the hearing was convinced that a preponderance of the evidence showed that the Complainant knowingly falsified weld records in a deliberate violation of federal law.
(3) Did the Respondent or any agent thereof direct the Complainant to commit the violation ? Although there was evidence that the Respondent forcefully directed the Complaint to perform the inspections, there was no evidence that the Respondent directed the Complainant to falsify inspection records.
[Nuclear & Environmental Digest XIX]
COMPLAINANT WHO DELIBERATELY CAUSES VIOLATION OF ERA
In Fields v. U.S. Dept. of Labor Adm. Review Bd. , No. 98-2614 (11th Cir. Apr. 21, 1999) ( per curiam ) (case below 1996-ERA-22), the court affirmed the decision of the ARB to accept the ALJ's recommendation of summary decision (following an evidentiary hearing) dismissing the complaint based on undisputed and overwhelming evidence that Complainants' had acted deliberately and without direction from Respondent's management when they twice conducted unauthorized tests on the nuclear reactor which triggered the alarm light. Although Complainants may have had a good motive of trying to obtain data to show that Respondent had not adequately addressed their safety concerns, the court held that "it is clear that petitioners' unauthorized frolics were just what Congress envisioned when it made the whistleblower statute inapplicable to "any employee who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of this chapter . . . ." Section 211(g), 42 U.S.C. 5851(g).
[N/E Digest XIX]
SECTION 211(g) AFFIRMATIVE DEFENSE; BURDEN OF PROOF
Section 211(g) provides an affirmative defense on which the respondent bears the burden of proof. Fields v. Florida Power Corp. , 96-ERA-22 (ARB Mar. 13, 1998).
DELIBERATIVE VIOLATION AS BAR TO SUIT UNDER CAA
[N/E Digest XIX]
In Dotson v. Anderson Heating & Cooling, Inc. , 95-CAA-11 (ARB July 17, 1996), the Board adopted the ALJ's findings that Complainant was not protected by the Clean Air Act because he deliberately violated the Act by cheating on an EPA required examination, and that Respondent did not direct him to do so. 42 U.S.C. § 7622(g).
[N/E Digest XIX]
COMPLAINANT'S DELIBERATE VIOLATION OF THE ERA OR AEA AS AN
AFFIRMATIVE DEFENSE
In Fields v. Florida Power Corp. , 96-ERA-22 (ALJ Mar. 11, 1997), the ALJ recommended the dismissal of three whistleblower complaints based on 42 U.S.C. § 5851(g), which serves as a bar to an ERA claim once it is determined that the complainant caused a deliberate violation of the ERA or AEA. The ALJ reviewed the pertinent statutory language, statutory history, caselaw, competing policy considerations, and principles of statutory construction, to reject Complainant's contention that § 5851(g) requires that a complainant know his or her acts are illegal. The ALJ, however, concluded that a Respondent has the burden of proving § 5851(g) as an affirmative defense, and must prove (1) that the act was done without direction from the employer, (2) that the complainant deliberately did the act, and (3) that the act caused a violation of ERA or AEA requirements.
XIX Deliberate violation; inadequate proof
In Dean & Lamb v. Houston Lighting & Power Co., 93-ERA-7 and 8 (ALJ Apr. 6, 1995), two Complainants alleged that they were terminated from employment because they had expressed concerns both internally and to the Nuclear Regulatory Commission about breaches of security at a nuclear facility owned and operated by the Respondent.
About one year after his termination from employment with the Respondent, Complainant Dean was discovered apparently to have had possession of a Safeguards Information document that was subject to secure handling procedures. The Respondent moved to dismiss based, first, on a subsection of the whistleblower provision of the ERA that bars redress for a whistleblower who has caused a deliberate violation of any nuclear safety requirement, §210(g), and second, based on the legal doctrine of "after-acquired evidence" which some courts at the time the motion had been filed permitted a complete defense to a discrimination complaint based on the discovery of employee wrongdoing that would have lead to his or her discharge on lawful and legitimate grounds had the employer known of it at the time of the adverse employment action.
In regard to the first ground for dismissal, the ALJ found that there was insufficient evidence to conclude that Dean's possession of the document was a "deliberate" violation of the ERA or the Atomic Energy Act. In regard to the "after acquired evidence" ground for dismissal, the ALJ noted that the Supreme Court had recently issued McKennon v. Nashville Banner Publishing Co. , 115 S. Ct. 879 (1995), in which the Court held that an employee who proves a discriminatory discharge is not barred from all relief if the employer, subsequent to the discharge, discovers evidence of wrongdoing that, by itself, would have led to the employee's discharge on lawful and legitimate grounds had the employer known of it at the time of the discharge.
[ Editor's note: The ALJ did not explicitly discuss what McKennon left intact of the after acquired evidence doctrine: that after acquired evidence of employee wrongdoing is still relevant in regard to the scope of the remedy. It is clear, however, that the ALJ's recommended decision is premised on this part of the after-acquired evidence doctrine.]
The ALJ concluded that although the Complainant's possession of the document was a technical violation, the Respondent would have fired Dean had it known he possessed it (Dean had already been placed on probationary status for prior negligence with Safeguards information).
Thus, although the ALJ found both Dean and Lamb to be entitled to relief, he did not recommend reinstatement of Dean, and recommended limiting Dean's entitlement to back pay to the date the possession of the Safeguards document was discovered and confirmed by the Respondent as a Safeguard's document. In contrast, the ALJ recommended ordering reinstatement of Lamb to his former position or to a substantially equivalent one, and payment of back pay "until the date paid".
XIX INTENTIONAL VIOLATION; DENIAL OF RELIEF TO COMPLAINANT
Where the Complainant participated in cheating on a EPA mandated CFC certification test, the ALJ recommended that the complaint be dismissed pursuant to 42 U.S.C. § 7622(g). The ALJ rejected the Complainant's argument that the Complainant should be allowed to prevail so as not to discourage other wrongdoers from coming forward if they have a change of heart. Although the ALJ recognized that "the policy behind this argument has current," he concluded that "[a]n intentional violator who experiences a change of heart is the only class of persons to whom subsection (g) could apply." Dotson v. Anderson Heating and Cooling, Inc., 95- CAA-11 (ALJ Oct. 2, 1995).
XIX. Denial of relief when complainant engages in deliberate safety violation
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), the ALJ's recommended that all relief be denied to Complainant because Complainant lied in his testimony about his employment and income since the date of discharge by Respondent. The ALJ held that
"[w]here a party has knowingly presented misleading evidence, forfeiture of that party's remedy is required to further the policy of the Act . . . [and] to safeguard the integrity of the adjudicative process. . . . [A]s a result of his attempted subversion of this proceeding, Complainant has forfeited his right to damages . . . .
The Secretary disagreed that misleading testimony about mitigation of damages requires denial of all relief.
First, the Secretary noted that the Clean Air Act states that if the Secretary determines that a violation has occurred, he or she shall order certain types of relief, including "compensation (including back pay)". 42 U.S.C. § 7622(b)(2)(B).
Second, even assuming there is some discretion to deny or limit back pay for reasons not directly related to the actual amount of damages suffered by an employee, the Secretary concluded that denial of back pay would not be appropriate in the instant proceeding.
The Secretary noted a distinction in parallel NLRA authority that between denial of reinstatement where a complainant lies to his employer or at the hearing, and denial of an award of back pay. Those cases indicate that it does not serve the policy of the NLRA to force an employer to rehire a deceitful employee. See Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176, 185 (8th Cir. 1964); NLRB v. Coca Cola Bottling Co., 333 F.2d 181, 185 (7th Cir. 1964); NLRB v. Brookshire Grocery Co., 919 F.2d 359, 364-65 (5th Cir. 1990); NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir. 1984) (distinguishing order for back pay only from reinstatement).
The Secretary concluded that the central purpose of the environmental whistleblower laws, to protect whistleblowers and in so doing to protect public health and safety, would be frustrated if all relief were denied even though the Secretary has found a violation. The remedial provisions of these acts are, in this respect, more analogous to the antiretaliation provisions of other statutes and other antidiscrimination laws such as the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3) (1988); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988), or the Age Discrimination in Employment Act, 29 U.S.C. § 623(d) (1988).
See Goldberg v. Bama Mfg. Corp. , 302 F.2d 152 (5th Cir. 1962) (when a district court denied both reinstatement and back pay to an employee who was discharged for reporting wage and hour violations to the Department of Labor Wage and Hour Division because the complainant was an incompetent, dishonest employee, the Fifth Circuit reversed the denial of back pay relief); Kneisley v. Hercules, Inc. , 577 F. Supp. 726 (D. Del. 1983) (where the plaintiff had falsified travel and expense reports for company trips, considerations of employer-employee compatibility are irrelevant to a back pay award).
The Secretary concluded that in the instant proceeding, denial of all back pay also would have the effect of undermining the acts' antidiscrimination objectives, particularly because Complainant's misconduct took place long after he was employed by Respondent. Having violated the acts, Respondent would in effect gain a windfall as a result of Complainant's post employment deception, which could undermine the confidence of other potential whistleblowers that they will be protected because the Department of Labor "allowed the employer to get away with it scot free." Goldberg v. Bama Mfg. Corp. , 302 F.2d at 156. While the Secretary shared the ALJ's concern that the integrity of the adjudicatory process is threatened when witnesses lie under oath, balancing the considerations discussed above, he found that denial of back pay would not be appropriate in this case.
The Secretary noted that the matter of dishonesty could be referred to the appropriate United States Attorney's Office or bar disciplinary committee.
XIX Affirmative defense -- burden on Respondent
Jackson v. Ketchikan Pulp Company, 93-WPC-7, 93-WPC-8 (ALJ Mar. 10, 1994)
A respondent has the burden of proof on the affirmative defense that a complainant deliberately violated the WPCA, 33 U.S.C. § 1367(d). In order to prove a violation of the WPCA, the respondent must prove two elements: 1) that the complainant discharged a pollutant into the navigable waters of the United States, and 2) that such discharge did not comply with the company's permit conditions.
XIX Absence of proof of "deliberate" violation
In Drew v. Jersey Central Power & Light Co., 81-ERA-3 (ALJ June 16, 1982), adopted (Sec'y Jan. 13, 1984), the ALJ held that Respondent's contention that the complaint should be dismissed as a matter of law under 42 U.S.C. § 5851(g) was without merit because there was no substantial evidence that Complainant deliberately caused any violation or requirement of the law.
XIX Denial of relief where whistleblower deliberately commits a safety violation
Section 210(g) of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851(g), denies relief for retaliation where the whistleblower deliberately commits a safety violation only in regard to the remedy provided by section 210(a); it does not bar state-law tort actions. English v. General Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270, 2280 (1990).
XIX. Denial of relief when complainant engages in deliberate safety violation
In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), the ALJ's recommended that all relief be denied to Complainant because Complainant lied in his testimony about his employment and income since the date of discharge by Respondent. The ALJ held that
"[w]here a party has knowingly presented misleading evidence, forfeiture of that party's remedy is required to further the policy of the Act . . . [and] to safeguard the integrity of the adjudicative process. . . . [A]s a result of his attempted subversion of this proceeding, Complainant has forfeited his right to damages . . . .
The Secretary disagreed that misleading testimony about mitigation of damages requires denial of all relief.
First, the Secretary noted that the Clean Air Act states that if the Secretary determines that a violation has occurred, he or she shall order certain types of relief, including "compensation (including back pay)". 42 U.S.C. § 7622(b)(2)(B).
Second, even assuming there is some discretion to deny or limit back pay for reasons not directly related to the actual amount of damages suffered by an employee, the Secretary concluded that denial of back pay would not be appropriate in the instant proceeding.
The Secretary noted a distinction in parallel NLRA authority that between denial of reinstatement where a complainant lies to his employer or at the hearing, and denial of an award of back pay. Those cases indicate that it does not serve the policy of the NLRA to force an employer to rehire a deceitful employee. See Iowa Beef Packers, Inc. v. NLRB, 331 F.2d 176, 185 (8th Cir. 1964); NLRB v. Coca Cola Bottling Co., 333 F.2d 181, 185 (7th Cir. 1964); NLRB v. Brookshire Grocery Co., 919 F.2d 359, 364-65 (5th Cir. 1990); NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir. 1984) (distinguishing order for back pay only from reinstatement).
The Secretary concluded that the central purpose of the environmental whistleblower laws, to protect whistleblowers and in so doing to protect public health and safety, would be frustrated if all relief were denied even though the Secretary has found a violation. The remedial provisions of these acts are, in this respect, more analogous to the antiretaliation provisions of other statutes and other antidiscrimination laws such as the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3) (1988); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988), or the Age Discrimination in Employment Act, 29 U.S.C. § 623(d) (1988).
See Goldberg v. Bama Mfg. Corp. , 302 F.2d 152 (5th Cir. 1962) (when a district court denied both reinstatement and back pay to an employee who was discharged for reporting wage and hour violations to the Department of Labor Wage and Hour Division because the complainant was an incompetent, dishonest employee, the Fifth Circuit reversed the denial of back pay relief); Kneisley v. Hercules, Inc. , 577 F. Supp. 726 (D. Del. 1983) (where the plaintiff had falsified travel and expense reports for company trips, considerations of employer-employee compatibility are irrelevant to a back pay award).
The Secretary concluded that in the instant proceeding, denial of all back pay also would have the effect of undermining the acts' antidiscrimination objectives, particularly because Complainant's misconduct took place long after he was employed by Respondent. Having violated the acts, Respondent would in effect gain a windfall as a result of Complainant's post employment deception, which could undermine the confidence of other potential whistleblowers that they will be protected because the Department of Labor "allowed the employer to get away with it scot free." Goldberg v. Bama Mfg. Corp. , 302 F.2d at 156. While the Secretary shared the ALJ's concern that the integrity of the adjudicatory process is threatened when witnesses lie under oath, balancing the considerations discussed above, he found that denial of back pay would not be appropriate in this case.
The Secretary noted that the matter of dishonesty could be referred to the appropriate United States Attorney's Office or bar disciplinary committee.
XIX Mere pleading of violation of 5851(g) does not end ALJ jurisdiction
In Hadden v. Georgia Power Co., 89-ERA-21 (ALJ May 21, 1990), the ALJ noted that where facts of sabotage on the part of the complainant are established , section 5851(g) precludes any form of relief to a complainant under section 5851(a). The ALJ rejected the Respondent's contention that the ALJ does not have jurisdiction to hear the complaint where there has been a 5851(g) violation -- that interpretation would permit a respondent to escape review simply by alleging that the employee committed acts of sabotage.
XIX Employee deliberately causes of violation of the Atomic Energy Act
In McKinney v. Tennessee Valley Authority, 92-ERA- 22 (ALJ Mar. 17, 1992), the ALJ granted summary judgment based on the Complainant's violation of 42 U.S.C. § 5851(g), which precludes whistleblower protection for any employee who, acting without direction from his or her employer deliberately causes a violation of any requirement of the Atomic Energy Act. In McKinney, the Complainant failed to respond to the Respondent's motion for summary judgment, and the ALJ took the Respondent's factual proof as true. The Respondent presented proof (principally based on a MSPB decision) that the Complainant violated the Atomic Energy Act when he affirmatively disabled two airtight doors to an airlock which was the passageway between a drywell housing a nuclear reactor and the outside. This action violated the requirement that primary containment integrity be maintained at all times when the reactor is critical or when the reactor water temperature is above 212 degrees fahrenheit and fuel is in the reactor vessel. The Respondent also established that it was subjected to a $75,000 civil penalty for such violations, showing therefore, that Complainant caused a violation of the Atomic Energy Act.
XIX Damages; Preemption of state cause of action
Section 210(g) of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851(g), denies relief for retaliation where the whistleblower deliberately commits a safety violation only in regard to the remedy provided by section 210(a); it does not bar state-law tort actions. English v. General Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270, 2280 (1990).