USDOL/OALJ Law Library
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER DIGEST
DETAILED TABLE OF CONTENTS

MAIN HEADINGS

I. OVERVIEW
II. FILING REQUIREMENTS, GENERALLY
III. TIME LIMITS ON FILING
IV. EQUITABLE TOLLING OF FILING PERIOD
V. OSHA/WAGE AND HOUR DIVISION INVESTIGATION
VI. REQUEST FOR HEARING
VII. PROCEEDINGS BEFORE OALJ
VIII. POWERS,RESPONSIBILITIES AND JURISDICTION OF ALJ, SECRETARY AND FEDERAL COURTS
IX. MISCELLANEOUS PROCEDURAL ISSUES
X. WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
XI. BURDEN OF PROOF AND PRODUCTION
XII. PROTECTED ACTIVITY
XIII. ADVERSE ACTION
XIV. EMPLOYER/EMPLOYEE
XV. MISCELLANEOUS DEFINITIONS
XVI. DAMAGES AND REMEDIES
XVII. SETTLEMENTS
XVIII. DISMISSALS
XIX. DENIAL OF RELIEF WHEN COMPLAINANT ENGAGES IN DELIBERATE SAFETY VIOLATION
XX. RELATIONSHIP BETWEEN 29 C.F.R. PART 24 AND OTHER LAWS
XXI. RES JUDICATA/COLLATERAL ESTOPPEL
XXII. POSTING

DIVISION I -- OVERVIEW
I. Overview

A. Statutory/regulatory scheme

1. Generally
2. Roles of DOL and NRC in protecting employees

B. Purposes

1. Generally
2. To protect against discriminatory treatment
a. Provision modeled on Mine Safety & Health Act
b. Protection of employees stronger purpose than promoting safety
3. To ensure the flow of information
a. Regulatory scheme based, in part, on employee participation in enforcement

DIVISION II -- FILING REQUIREMENTS, GENERALLY
II. Filing requirements, generally

A. Generally

B. Pleading requirements

1. Form of complaint
a. "Complaint" is not a formal legal pleading
b. Development or amendment of complaint

2. Requirement that violation underlying the complaint confers subject matter jurisdiction

3. Requirement of written complaint
a. Generally; verbal complaint inadequate
b. Writing in hand of person other than the complainant

C. Requirements relating to person and place

1. Who may file
2. Place of filing

DIVISION III- TIME LIMITS ON FILING
III. Time limits on filing

A. Generally

1. Due process
2. Affirmative defense -- must be raised in pleadings
3. Authority of ALJ to entertain motion for summary decision
4. Effect of Wage & Hour Division's determination of timeliness
5. New evidence of discrimination
6. Tolling based on employer's failure to post notice of ERA rights

B. Computation of timeliness

1. Applicability of 29 C.F.R. § 18.4
2. Initiation of filing period
a. Date of notification rather than effect
b. Standard: Final, definitive and unequivocal notice
3. Evidentiary matters

C. Timely filing of discriminatory acts of continuing nature

1. Generally; nature of continuous acts
2. Blacklisting
3. Complaint not actionable; continuing discrimination theory does not preserve earlier claims
4. Hostile work environment

DIVISION IV -- EQUITABLE TOLLING OF FILING PERIOD
IV. Equitable tolling of filing period

A. Generally

B. Circumstances justifying equitable tolling

1. Misleading of employee
2. Prevention of assertion of rights
3. Wrong forum

C. Other attempted applications

1. Ends of justice
2. Failure of employer to post notice of rights
3. Lack of knowledge about remedy
4. Misinformation provided by or delay of government official
5. Negligence of attorney or representative
6. Pending local remedy/settlement negotiation
7. Pending unemployment application
8. Reopening of prior complaint
9. Miscellaneous

D. Computation of length of equitable tolling

DIVISION V -- OSHA/WAGE AND HOUR DIVISION INVESTIGATION
V. OSHA/Wage and Hour Division investigation

A. Generally

B. Prima facie showing requirement under the ERA

C. Administrator's actions or inactions

1. Requirement that Wage and Hour complete its investigation
2. Failure to make timely investigation
3. Failure to give timely notice of filing of complaint

D. Applicability of OALJ Rules of Practice

DIVISION VI -- REQUEST FOR HEARING
VI. Request for hearing

A. Requirement that DOL provide adequate notice of right to request a hearing

B. Complainant's failure to send a copy of the request for a hearing to the respondent

C. Necessity for an "answer" to the request for a hearing

D. Form of request

E. Timeliness

DIVISION VII -- PROCEEDINGS BEFORE OALJ
VII. Proceedings before OALJ

A. Discovery

1. Generally
2. Limitations on discovery
3. Sanctions for failure to attend deposition or to comply with discovery orders
4. Informer's privilege; other privileges
5. Protective order
6. Miscellaneous issues

B. Subpoenas

1. DOL authority to issue
2. Subpoenas directed at DOL
3. Subpoenas not self-executing
4. Scope of subpoena
5. Quashing of subpoena

C. Summary decisions

1. Generally
2. Pro se complainants
3. Failure to state a claim upon which relief may be granted

D. Conduct of hearing

1. Scheduling of hearing
2. Admission of evidence
3. Dismissal of a claim
4. Motion to disqualify ALJ
5. Continuance
6. Other matters

E. Miscellaneous

DIVISION VIII -- POWER, RESPONSIBILITIES AND JURISDICTION OF ALJ, SECRETARY, FEDERAL COURTS
VIII. Power, responsibilities and jurisdiction of ALJ, Secretary, federal courts

A. Administrative Law Judge

1. De novo review
2. Decision and order
a. Recommended or final
b. Citations to the record
c. Other matters
3. Responsibility to be familiar with and to follow Secretarial precedent
4. Miscellaneous limitations on jurisdiction
5. Recusal/disqualification
6. Effect of ALJ's actions or inactions
7. Treatment of case on remand
8. Other matters

B. Secretary of Labor/ARB

1. Jurisdiction of Secretary/ARB
a. Automatic review of ALJ's recommendation
b. Time limitations
c. Final decisions and orders
d. Other matters
2. Scope of review by the Secretary/ARB
a. Deference to ALJ's findings
b. New or additional evidence
c. Issues not raised below
d. Summary decision; de novo review
e. Procedural errors of ALJ; abuse of discretion standard
3. Interlocutory appeals
4. Effect of Secretary's actions or inactions
5. Allegation of misconduct
6. Oral argument

C. Federal courts

1. District courts
2. Courts of Appeals
a. Standard of review
b. Deference to agency's findings, interpretations
c. Appealable final order

DIVISION IX -- MISCELLANEOUS PROCEDURAL ISSUES
IX. Miscellaneous procedural issues

A. Record for review

B. Filing of motions and briefs

1. Generally
2. Filing before the ARB (formerly OAA)
3. Amicus briefs
4. Pleadings filed by pro se complainant

C. Consolidation of cases; joinder of parties

D. Motion to reopen or to reconsider

1. General standard (Rule 60(b) and 29 C.F.R. § 18.54(c))
2. Newly discovered evidence
3. ALJ's, Secretary's and ARB's authority to reconsider

E. Remand

F. Ex parte communications

G. Service

H. Imposition of sanctions

1. Applicability of Federal Rules of Civil Procedure
2. Applicability of 29 C.F.R. Part 18
3. Applicability of Administrative Procedure Act
4. Other matters

[See also VII. A. 3. as to sanctions for failure to attend deposition.
See also XVI. E. 5. as to the respondent's request for fees and costs.
See also XVIII. B. 4. as to the imposition of conditions on a dismissal.]

I. Time; waiver and other issues
K. Stay of proceedings; motion to expedite
L. Motion in limine
M. Other procedural matters
1. Relationship of CERCLA to Part 24
2. Attorney misconduct/Disqualification of counsel
3. Relationship between Part 24 and other rules practice and rules of evidence
N. Expert Witness

DIVISION X -- WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
X. Weighing of evidence and interpretation of law, generally

A. Statutory and regulatory interpretation

1. Use of legislative history
2. Value of analogous case types as precedent
a. ADEA
b. Title VII
c. National Labor Relations Act
d. Coal Mine Health & Safety Act
3. Absence of express provision not evidence of preclusion
4. Views of NRC and DOE
5. Relationship between cases interpreting various nuclear and environmental employee protection provisions
6. Construction to achieve purposes of Act
7. Label of regulation as aid to interpretation

B. Complainant's evidence need not precisely fit analytical model

C. Circumstantial evidence

D. Direct evidence of discrimination

E. Credibility determinations

1. Requirement of sufficient clarity
2. Demeanor of witnesses
3. Consistency of testimony
4. Weight afforded depositions at which opposing party not afforded opportunity to cross-examine

F. Probative weight of documents produced during Wage and Hour investigation

G. Technical matters
1. Memorandum of agreement with NRC

H. Stipulations

I. Sealing of record

J. Attorney as witness; disqualification

K. Recognition of DOL expertise in whistleblower litigation

L. Hearsay

M. Relevancy of efficacy of NRC regulations/investigative report

N. Relevancy of NRC notice of violation

O. Precedential value of ALJ or Secretary's decision

P. Miscellaneous

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION A -- ELEMENTS OF A WHISTLEBLOWER COMPLAINT
XI. Burden of proof and production

A. Elements

1. Generally
2. Establishing causation element
a. Generally
b. Circumstantial evidence
i. Generally
ii. Proximate timing of adverse action
iii. Other circumstances
c. Respondent's awareness of protected activity
d. Direct evidence of discrimination
3. Existence of adverse action

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON FOR ADVERSE ACTION

XI. Burden of proof and production

B. Nondiscriminatory reason for adverse action

1. Generally
2. Particular reasons
a. Nondiscriminatory layoffs
b. Behavior of complainant
i. Protest activities
ii. Poor work performance
iii. Leaving work area
iv. Abusive or threatening behavior
v. Misuse of company property
vi. Disruption of the work place
vii. Obtaining job with fraudulent credentials
viii. Insubordination/unauthorized actions
ix. Bypassing the chain of command
c. Other reasons
3. St. Mary's Honor Center; bursting bubble upon articulation; prima facie case analysis looses relevance

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION C -- PRETEXT
XI. Burden of proof and production

C. Pretext

1. Generally
2. Illustrative cases
a. Pretext established
b. Pretext not established

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION D -- RESPONDENT'S BURDEN
XI. Burden of proof and production

D. Respondent's burden to establish adverse action would have been taken absent protected activity
1. Generally
a. Respondent at risk that reasons cannot be separated
b. "But for" test
2. When implicated
3. Illustrative cases
a. Substantially disproportionate actions
b. Termination procedures inadequate
c. Complainant's misappropriation of company records
d. Other cases

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION E -- EVIDENTIARY MATTERS
XI. Burden of proof and production

E. Evidentiary matters
1. Evidence need not be fine tuned to analytical model
2. Precedential weight of Title VII and NLRA cases
3. Circumstantial evidence
4. Credibility determinations
5. Use of statistical evidence to infer discrimination
6. Preponderance of evidence standard
7. Protection not dependent on proving an actual violation
8. Protection not dependent on violation comprising predominant subject of complaint
9. ALJ's consideration of reasons for discharge not raised by the respondent
10. Evidence of past discrimination
11. Different treatment not element of complaint
12. Evidence of events occurring subsequent to adverse action/offer of settlement
13. Prima facie case; finding of fact not necessary
14. Respondent's state of mind

DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION F -- AFTER ACQUIRED EVIDENCE
XI. Burden of proof and production

F. After acquired evidence

DIVISION XII -- PROTECTED ACTIVITY
XII. Protected activity

A. Generally

B. Entity to which complaint is directed

1. Complaints within the employer's organization (internal complaints)
a. Generally
b. Circuit courts recognizing internal complaints as protected activity
c. Fifth Circuit's position
d. Secretary of Labor's recognition of internal complaints as protected activity
i. In general
ii. The Secretary's acquiescence in the Fifth Circuit (pre-1992 amendments)
iii. Applicability to employees other than quality control inspectors
e. Complaint directed to subcontractor

2. Complaints to other entities
a. Complaints to local authorities
b. Complaint to federal agency
c. Contact with a public interest group or a private individual
d. Contact with the media
e. Complaint to general public
f. Complaint to co-worker
g. Coverage generally
h. Complaint to Congress
i. Seeking a legal opinion

C. Mode of complaint

1. Formal complaint is not required
2. Existence of a "proceeding" is not required
3. Complainant's intent or purpose is not determinative
4. Reasonable perception of violation
5. Disclosure need not be unique, unknown or substantial
6. Complainant's intemperate or implusive behavior [see also XI.B.2.b. iv. and viii. ]
7. About to contact authorities
8. Conduct taken pursuant to employment authority or within rights afforded
9. Failure to give respondent opportunity to explain why conditions were actually safe
D. Specific activity as "protected activity"

1. Reporting unsafe condition or regulatory violation
a. Generally
b. Generic complaint of health problems
c. Preliminary steps or threats to report an unsafe condition
d. Bypassing the chain of command
2. Participation in NRC proceeding or investigation
3. Questioning of safety procedures
4. Questioning of validity of licenses or permits
5. Quality control and quality assurance functions/investigatory duties
6. Reporting mismanagement
7. Complaints about scheduling or duties
8. Employee suggestions
9. Complaint of employer retaliation
10. Refusal to work
11. Attorney's memorandum
12. Efforts to discover or obtain evidence of violations
a. Generally
b. Employee activity outside the course of official duties
13. Other activities

DIVISION XIII -- ADVERSE ACTION
XIII. Adverse action

A. Generally

B. Specific actions

1. Blacklisting
2. Contesting of workers' compensation
3. Delayed implementation of EEOC order
4. Demotion; reduction in salary; smaller salary increase
5. Denial of parking privileges/company car
6. Discharge
7. Failure to comply with term of settlement agreement
8. Failure to hire
9. Failure to provide safety information and services
10. Libel suit
11. Referral to employee assistance program/medical or psychological evaluation
12. Refusal to hire on permanent basis
13. Reneging on offer to withdraw termination
14. Retaliatory harassment
15. Ridicule
16. Transfer to less desirable employment
17. Unsatisfactory job evaluation
18. Other actions

C. Continuing course of harassment/hostile work environment
D. Respondent immediately rescinds action

DIVISION XIV -- EMPLOYER/EMPLOYEE
XIV. Employer/employee/authorized representative

A. Employee

1. Generally
2. Specific employees
a. Attorney
b. Job applicants and former employees
c. Government employee
d. Independent contractor
e. Prison inmate
f. Prospective employee
g. Member of board of directors

B. Employer

1. Generally
2. Requirement of employer-employee relationship
3. Employer other than the Respondent
4. Specific employers
a. Defense facility
b. Department of Energy facilities
c. City or state agency
d. Employment agency
e. Federal government
f. Labor union
g. Leasing agent
h. "Small quantity generator" (SWDA)
i. Subcontractor
j. Other

C. Authorized representative of employees

DIVISION XV -- MISCELLANEOUS DEFINITIONS
XV. Miscellaneous definitions

A. Appendix R

B. Ambient air

C. Chemical compounds

D. Condition Adverse to Quality Report (CAQR)

E. Government Accountability Project

F. Milliroentgen

G. Nonconformance report

H. Outage

I. Pollutants (FWPCA)

J. Resource Conservation Recovery Act

K. Other

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION A -- GENERALLY
XVI. Damages and remedies

A. Generally

1. Statutory and regulatory provisions
2. Limitation on Secretary's authority to order relief
3. Enforcement
4. Scope of remand proceedings; issues and evidence
5. Effect of after-acquired evidence on damages

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION B -- REINSTATEMENT
XVI. Damages and remedies

B. Reinstatement

1. Generally
2. Requirement that complainant be reinstated to former position; application for reinstatement to comparable position when former position no longer exists
3. Immediate issuance of ERA reinstatement orders
4. Reinstatement not feasible; appropriateness of front pay as a substitute; transfer
5. Limitations on duration of reinstatement
a. Short-term project
b. Legitimate layoffs
c. Firing for legitimate reasons
d. Lapse of eligibility
e. Refusal of unconditional offer of reinstatement
6. Stay of reinstatement order
7. Job applicant/denied promotion
8. Benefits and privileges of employment
9. Outage Workers; right to "reinstatement"

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION C -- BACK PAY, AND OTHER TERMS, CONDITIONS AND PRIVILEGES OF EMPLOYMENT
XVI. Damages and remedies

C. Back pay, and other terms, conditions and privileges of employment

1. Generally
a. Statutory and regulatory authority; purpose
b. Requirement that complainant request back pay
c. Burden of proof; uncertainties resolved against discriminating party
d. Stay of Secretary's final order
e. Joint employer
2. Computation
a. Permissibility of use of hypothetical employment history
b. Duration of entitlement to back pay
i. Short term project or legitimate layoffs
ii. Firing for legitimate reasons
iii. Period complainant was not available for work
iv. Refusal of unconditional offer of reinstatement
v. Lack of mitigation of damages
c. Deductions/additions
i. Interim earnings
ii. Unemployment compensation/severance pay
iii. Self-employment
iv. Disability benefits
v. Lack of mitigation of damages
vi. Tax consequences of lump sum payment
d. Calculation of overtime; night-shift differential; salary increases
e. Interest
3. Terms, conditions and privileges of employment

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION D -- COMPENSATORY DAMAGES
XVI. Damages and remedies

D. Compensatory damages

1. Statutory and regulatory authority
2. When the issue of compensatory damages must be raised and proved
a. Complaint
b. Evidence presented at hearing
i. ALJ finds against complainant
ii. Future medical expenses and pain and suffering
3. Particular compensatory damages
a. Pain and suffering, mental anguish, embarrassment and humiliation
b. Loss of professional reputation
c. Medical expenses and adverse physical health consequences
d. Other
4. Scope of recovery
a. Comparative awards
b. Interest on compensatory damages
c. Continuing violations; blacklisting
d. Enhancement for tax consequences
e. Addition for damages incurred during remand proceedings

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION E -- LITIGATION EXPENSES
XVI. Damages and remedies

E. Litigation expenses

1. Statutory and regulatory authority
2. The "reasonably incurred" standard
3. Determining the reasonableness of a petition
a. Burden of proof; elements of petition; lodestar
b. Relevancy of fee agreement between complainant and counsel
c. Relevant community for comparing hourly rate
d. Miscellaneous factors
i. Productive versus nonproductive hours
ii. Peripheral matters
iii. Counsel's inexperience
iv. Time spent talking to the press
v. Other reductions
vi. Adjustment for increase in experience or inflation
e. Fee enhancement
i. Contingency-fee arrangement; risk of no payment
(1) Supreme Court authority on fee shifting statutes
(2) Secretary's view
ii. Delay in payment
f. Recovery for time spent in preparing a fee claim
g. Costs and expenses
4. Fee petitions for work before ALJ, Secretary and Court of Appeals
a. Proceedings before ALJ
b. Proceedings before the Secretary
c. Proceedings before the Court of Appeals
5. Respondent's request for attorneys' fees
6. Costs incurred by the complainant
7. Preliminary order on attorney fees

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION F -- PUNITIVE DAMAGES
XVI. Damages and remedies

F. Punitive damages

DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION G -- ABATEMENT AND OTHER RELIEF
XVI. Damages and remedies

G. Abatement and other relief

1. Statutory and regulatory authority
2. Particular relief
a. Expungement of personnel record and posting of decision
b. Other affirmative forms of abatement
c. Criminal sanctions; ordering further investigation or monitoring

DIVISION XVII -- SETTLEMENTS
XVII. Settlements

A. Standard for review: fair, adequate and reasonable/authority of Secretary to review

B. Unacceptable terms or conditions

1. Specific provisions
a. Confidentiality provision/limitation on complainant's ability to provide information to DOL or other authorities
b. Matters not relating to ERA complaint or that arise under non-ERA statutes
c. Waiver of future claims
d. Interpretation under state law
e. Prior notice of filing of future complaints
f. Disclaimer of wrongdoing
g. Modification; requirement of consent of parties
h. Contingency provisions
i. Limitation on DOL enforcement authority
2. DOL's authority to control terms
a. Severance of unacceptable term or condition
b. Addition of term of dismissal with or without prejudice

C. Record for review

1. Generally
2. Absence of formal settlement document
3. Documents and dollar amounts referenced in settlement agreement must be submitted for review

D. Dismissal of claim

1. Regulatory authority
2. Motion to withdraw based on settlement does not void need for Secretary's review

E. Maintenance of confidentiality

1. Secretarial review required
2. Settlement agreement as a public document

F. Renunciation

G. Miscellaneous issues

1. Attorney's fees
2. Contingent agreement
3. District Director's finding that Act was violated despite settlement's stipulation of no violation admitted
4. Enforcement of settlement agreement
5. Satisfaction of terms prior to Secretary's review
6. Separate agreements
7. Time limit on Secretarial review
8. Findings of fact/conclusions of law improper
9. Other issues

DIVISION XVIII -- DISMISSALS
XVIII. Dismissals

A. Voluntary dismissal

1. Applicability of Rule 41
2. ALJ dismissals under Rule 41(a) are recommended
3. ALJ must state whether dismissal is with or without prejudice
4. Dismissal without leave; Rule 41(a)(1)(i)
a. In general
b. Functional equivalent of an answer
i. Employer requested hearing
ii. Complainant requested hearing
c. Summary judgment
d. Exceptions; merits raised or suit at advanced stage
e. Dismissal without prejudice
f. Costs not awardable under Rule 41(a)(1)(i)
5. Stipulated dismissal; Rule 41(a)(1)(ii)
a. In general
b. Dismissal based on a settlement agreement
6. Withdrawal of motion to dismiss
7. Failure to file written withdrawal
8. Other matters

B. Dismissal by order of the court; Rule 41(a)(2)

1. When Rule 41(a)(2) applies
2. Rule 41(a)(2) criteria
3. Legal prejudice
4. Criteria for determining whether conditions should be imposed
5. Dismissal without prejudice does not toll time limits for filing

C. Dismissal for cause

1. Generally
2. Requirement of preliminary order to show cause
3. ALJ's dismissals are recommended, not final
4. Failure to attend hearing
5. Abandonment
6. Failure to comply with the ALJ's lawful order
7. Default judgment
8. Failure to prosecute
9. Lack of jurisdiction
10. Misconduct of party/counsel
11. Repetitive claims

DIVISION XIX -- DENIAL OF RELIEF WHEN COMPLAINANT ENGAGES IN DELIBERATE SAFETY VIOLATION
XIX. Denial of relief when complainant engages in deliberate safety violation

DIVISION XX -- RELATIONSHIP BETWEEN 29 C.F.R. PART 24 AND OTHER LAWS
XX. Relationship between 29 C.F.R. Part 24 and other remedies
A. United States Constitution

B. Other federal statutes/regulations

1. Exclusiveness of Part 24 remedy
2. Res judicata effect
3. OSHA whistleblower provisions
4. Civil Service Reform Act
5. Whistleblower Protection Act
6. FECA
7. NRC regulations
8. Bankruptcy
9. Certification Programs

[As to the precedential value of similar federal statutes, see X.A.1. ]

C. State laws

1. Preemption
2. Res judicata effect
3. Full faith & credit

D. Arbitration/exhaustion of local remedies
E. Sovereign immunity
F. Prosecutorial immunity
G. Privileges

DIVISION XXI -- RES JUDICATA/COLLATERAL ESTOPPEL/LAW OF THE CASE
XXI. Res judicata/collateral estoppel

A. Prior DOL proceeding
B. Other proceedings
C. Law of the case; stare decisis
DIVISION XXII -- POSTING
XXII. Posting