USDOL/OALJ Apr. 1997 Whistleblower Newsletter

In Jones v. Pacific Gas & Electric Co. , 97-ERA-3 (ALJ Mar. 19, 1997)(order denying motion for reconsideration), the Wage and Hour division found that Complainant was not an employee, and never reached the merits. Respondent conceded before the ALJ that Complainant was, in fact, an employee, and moved for a remand for Wage and Hour to complete its investigation. The ALJ denied the motion finding that Complainant would be prejudiced because Congress had intended that ERA complaints be expeditiously resolved, and because the proceeding before the ALJ is de novo . The ALJ rejected Respondent's contention that there is a distinction between merely flawed investigations, in which case a remand is not necessary, see Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), and an incomplete investigation.

Once a case is fully tried on the merits, it is not necessary for the ALJ to determine whether the complainant presented a prima facie case. Once the respondent produces evidence that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Rather, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. If he or she did not, it does not matter whether a prima facie case was presented.

Reynolds v. Northeast Nuclear Energy Co. , 94-ERA-47 (ARB Mar. 31, 1996).

A legal dispute whether purely internal complaints to management constitutes protected activity under the ERA no longer exists because the 1992 amendments to the ERA explicitly include an employee's notification to his or her employer of an alleged violation of the ERA. See Section 2909(a) of the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3123.

Reynolds v. Northeast Nuclear Energy Co. , 94-ERA-47 (ARB Mar. 31, 1996).

Back pay awards to victorious whistleblowers in DOL adjudications are to be calculated in accordance with the make whole remedial scheme embodied in § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (1988). See Loeffler v. Frank , 489 U.S. 549 (1988).

See Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996).

In Smith v. Esicorp, Inc. , 93-ERA-16 (ALJ Feb. 26, 1997), the ALJ considered compensatory damages for a whistleblower who had been subjected to a hostile work environment. The ALJ noted several factors that influenced his decision to recommend compensatory damages in the amount of $100,000, including Complainant's credibility, and testimony establishing that the hostile working environment changed Complainant's demeanor and his outlook on life (including depression, physical symptoms, family disruptions, suicidal thoughts, and changed relationships with friends).

In Smith , Respondent did not offer any contrary evidence, but suggested that the validity of Complainant's testimony regarding his emotional problems should be attenuated because Complainant and his wife were the only witnesses at the formal hearing. The ALJ dismissed this contention, noting that expert testimony is not necessary to establish Complainant's emotional distress resulting from Respondent's hostile working environment, and finding that Complainant's emotional problems could be inferred from the circumstances as well as established by the testimony. The ALJ indicated that he was strongly influenced by Complainant's emotional reactions during testimony, which he found were genuine and showed obvious emotional distress. The ALJ also noted examples of workplace harassment other than the evidence that the Secretary based his finding of hostile work environment, including continuing use of the word "Bubba-gate" at the work facility.

In James v. Ketchikan Pulp Co. , 94-WPC-4 (ARB Mar. 11, 1997), the ARB ordered the parties to submit a copy of a settlement agreement to the ARB, so that it could determine whether the settlement agreement is fair, adequate and reasonable. The ARB also ordered the parties to "provide the settlement documentation for any other alleged claims arising from the same factual circumstances forming the basis of the federal claim, or to certify that no other such agreements were entered into between the parties," citing Biddy v. Alyeska Pipeline Service Co. , 95-TSC-7 (ARB Dec. 3, 1996).

The ALJ's recommended decision indicates that the settlement agreement relates only to the amount of Complainant's attorneys' fee application. James v. Ketchikan Pulp Co. , 94-WPC-4 (ALJ Dec. 13, 1996).

The ARB's order is a departure from the approach in Biddle v. United States Dept. of the Army , 93-WPC-15 (Sec'y Mar. 29, 1995), adopting (ALJ May 6, 1994), a FWPCA case in which the parties settled, but the matter was dismissed pursuant to Fed. R. Civ. P. 41(a)(1)(ii) based on a stipulated withdrawal without a review of the settlement by the ALJ or the Secretary. Rule 41(a)(1)(ii) was used in Biddle based on the reasoning that the statutory language of the FWPCA, unlike the CAA or the ERA, does not make the Secretary a signatory to the settlement.

In Seater v. Southern California Edison Co. , 95-ERA-13 (ALJ Mar. 11, 1997), the ALJ pointed out a conflict between the public policy that whistleblower settlements should be subject to public scrutiny -- see Biddy v. Alyeska Pipeline Service Co. , 95-TSC-7 (ARB Dec. 3, 1996) (importance of publication of the true dollar amount of whistleblower settlements for the benefit of the public and potential future whistleblowers -- and the parties' ability, by self-designation of settlement terms as confidential commercial information, to invoke FOIA procedures obligating the Department to provide predisclosure notification to the parties in the event of a FOIA request for the settlement agreement. See 29 C.F.R. § 70.26(b). The ALJ suggested that the ARB address this conflict, suggesting that the dollar amount of a settlement should be published, or at the very least the submitter should be required to establish before the ALJ that the information designated as confidential commercial information is truly material that could cause substantial competitive harm if disclosed pursuant to FOIA.

In Seater v. Southern California Edison Co. , 95-ERA-13 (ARB Mar. 27, 1997), however, the ARB declined the ALJ's suggestion sub silentio . Rather, the ARB employed the following standard boilerplate language in approving the settlement:

    The records in this case are agency records which must be made available for public inspection and copying under the FOIA. In the event a request for inspection and copying of the record of this case is made by a member of the public, that request must be responded to as provided in the FOIA, If an exemption is applicable to the record in this case or any specific document in it, the Department of Labor would determine at the time a request is made whether to exercise its discretion to claim the exemption and withhold the document. If no exemption were applicable, the document would have to be disclosed. Since no FOIA request has been made, it would be premature to determine whether any of the exemptions in the FOIA would be applicable and whether the Department of Labor would exercise its authority to claim such an exemption and withhold the requested information. It would also be inappropriate to decide such questions in this proceeding.

Slip op. at 2.

In Nowak v. Environmental Department of the State of New Mexico , 96-CAA-9 (ALJ Mar. 4, 1996), the ALJ recommended approval of a settlement agreement that included a provision that the agreement could be enforced through binding arbitration. The ALJ held that "[s]uch a provision is appropriate in this case because the Eleventh Amendment may preclude the Complainant from seeking to enforce the agreement in a Federal District Court under the provisions of 42 U.S.C. § 7622(e). See Seminole Tribe of Florida v. Florida , __ U.S. __, 116 S. Ct. 1114 (1996); Wilson-Jones v. Caviness , 99 F.3d 203 (6th Cir. 1996)." The ALJ, however, found that the arbitration provision does not limit the Secretary's authority to seek enforcement of the agreement pursuant to 42 U.S.C. § 7622(d).

Back pay awards to victorious whistleblowers in DOL adjudications are to be calculated in accordance with the make whole remedial scheme embodied in § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (1988). See Loeffler v. Frank , 489 U.S. 549 (1988).

Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996).

In Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996), the ARB found that a $15 per hour increase in the Complainant's attorney's basic billing rate for work before the Court of Appeals was reasonable.

In Polgar v. Florida Stage Lines , 94-STA-46 (ARB Mar. 31, 1996), the matter had been appealed to the Eleventh Circuit, and affirmed. Complainant petitioned the ARB for an award of additional back pay. In discussing Respondent's objections, the ARB indicated that the basic formula for the back pay award, having been set out in the Secretary of Labor's June 5, 1995 decision, and affirmed by the circuit court, was now the law of the case. Slip op. at 3 n.3 and Slip op. at 4.