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Office of Administrative Law Judges
USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION XII -- PROTECTED ACTIVITY

[Last updated Jan. 8, 2014]


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 ERA 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 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


[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; ARB AFFIRMS ALJ DECISION THAT RELIED IN LARGE PART ON PRECEDENT HOLDING THAT UNDER THE ERA WHISTLEBLOWER "ANY-OTHER-ACTION-TO-CARRY-OUT-THE-PURPOSES-OF-THIS-CHAPTER" PROVISION, PROTECTED ACTIVITY MUST RELATE TO NUCLEAR SAFETY "DEFINITIVELY AND SPECIFICALLY"; ARB RECOGNIZED CONCERN ABOUT "DEFINITIVELY AND SPECIFICALLY" STANDARD AS APPLIED TO 42 U.S.C. § 5851(a)(1)(F), BUT RESERVED THE QUESTION FOR ANOTHER DAY AS ANY ALTERNATIVE INTERPRETATION OF SUBSECTION (F) WOULD NOT CHANGE THE RESOLUTION OF THE INSTANT APPEAL

In Hoffman v. NextEra Energy, Inc., ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant was the assistant operations manager at a nuclear power plant who argued, inter alia, that he disclosed safety-related staffing inadequacies, maintenance defaults and safety-related equipment maintenance defaults, that constituted protected activity under the ERA. The ALJ found that some of the activities were protected, but not where the discussions about staffing routine issues did not "specifically and definitively" include discussion of nuclear safety. The ARB affirmed the ALJ’s finding that eight of the alleged protected activities "were not protected activities because they did not specifically and definitively implicate nuclear safety, but merely constituted non-nuclear safety related suggestions or inquiries, or otherwise did not identify actions leading to discrimination." USDOL/OALJ Reporter at 7. The ARB found that, clearly, none of the activities fit the five specific categories of activity protected from retaliation, "including notifying one’s employer of an alleged violation of the ERA or the Atomic Energy Act (AEA), refusing to engage in activities prohibited under either the ERA or AEA provided the employee has identified the alleged illegality to his or her employer, testifying before Congress or at any Federal or State proceeding regarding any provision of the ERA or the AEA, commencing or causing to be commenced a proceeding under or the enforcement of the ERA or AEA, or testifying (or being about to testify) in any such proceeding. 42 U.S.C.A. § 5851(a)(1)(A)-(D)." Id. The remaining question, therefore was whether the Complainant’s activities were "protected under the ERA’s catch-all provision that protects an employee who, among other things, assists or participates or is about to assist or participate "in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.’ 42 U.S.C.A. § 5851(a)(1)(F)." Id. at 7-8. The ARB wrote:

The ERA does not define the phrase "any other action to carry out the purposes of this chapter" as set forth in subsection (F). Courts, however, have construed the phrase as requiring, in light of the ERA’s overarching purpose of protecting acts implicating nuclear safety, that an employee’s actions must implicate safety "definitively and specifically" to constitute whistleblower protected activity under subsection (F). Viewing Hoffman’s eight activities detailed above through this lens, we find the ALJ’s determination that Hoffman failed to prove that any of these activities constituted ERA-protected activity consistent with this court precedent.

Id. at 8 (footnotes omitted). The panel qualified its discussion, however, with the following note:

This panel recognizes the existence of some concern about the propriety of the "definitively and specifically" requirement that several courts have embraced in interpreting 42 U.S.C.A. § 5851(a)(1)(F). Nevertheless, because any alternative interpretation of subsection (F) that this panel might consider would not change our resolution of the present case, we do not find it necessary to address those concerns at this time. We reserve for a later day and another case the question of whether the "definitively and specifically" requirement for assessing whether an employee has engaged in ERA protected activity under subsection (F) is deserving of reconsideration.

Id. at 8, n.16.

[Nuclear and Environmental Whistleblower Digest XII A]
SUBJECT MATTER JURISDICTION; A FINDING THAT A COMPLAINANT DID NOT ENGAGE IN PROTECTED ACTIVITY IS NOT A FINDING OF LACK OF "JURISDICTION" BUT RATHER A LACK OF COVERAGE

In Santamaria v. U.S. Environmental Protection Agency, ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the ALJ found that the Complainant did not engage in protected activity and therefore he did not have "jurisdiction" over the complaint. The ARB clarified that the issue was one of coverage – not jurisdiction.

XII A Definition; protected activity

A complaint or charge of employer retaliation because of safety and quality control activities is protected activity under the ERA. McCuistion v. Tennessee Valley Auth., 89-ERA- 6 (Sec'y Nov. 13, 1991).

[Nuclear and Environmental Whistleblower Digest XII A]
EXTENT TO WHICH DECISION MAKER MUST DETERMINE PROTECTED ACTIVITY UNDER VARIOUS STATUTES PLEADED

In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), once the ARB determined that the Complainant engaged in protected activity under the SWDA, it found it unnecessary to determine whether other environmental whistleblower statutes pleaded by the Complainant applied.

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; MUST RELATE DEFINITIVELY AND SPECIFICALLY TO THE SUBJECT MATTER OF THE PARTICULAR STATUTE

In Carpenter v. Bishop Well Services Corp., ARB No. 07-060, ALJ No. 2006-ERA-35 (ARB Sept. 16, 2009), the ARB held that the Complainant did not engage in protected activity under the ERA, environmental, and pipeline safety whistleblower statutes when he spoke to OSHA about high pressure on service rig hoses, and missing handrails on his rig. The ARB agreed with the ALJ that the Complainant did not report any concerns about nuclear, pipeline or environmental hazards when he spoke to OSHA.

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; MUST IMPLICATE SAFETY DEFINITIVELY AND SPECIFICALLY; REPORT OF BLACKMAIL ATTEMPT TO CLEAR WAY FOR HONEST REPORT TO NRC CONCERNING DEFICIENCIES IN CLEARANCES FOR AUTHORIZED ACCESS IMPLICATES SAFETY

To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically. American Nuclear Res., Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). In Kester v. Carolina Power & Light Co., ARB No. 02 007, ALJ No. 2000 ERA 31 (ARB Sept. 30, 2003), Complainant had reported to company officials an attempt by his supervisor to blackmail him to take the blame for falsification of authorized access clearances in order to clear the way for Complainant to report honestly to an NRC investigator about the events without fear of reprisal by his supervisor. The ARB held that this implicated safety and was protected activity because Complainant's department was the first line of defense in protecting Respondent's nuclear plants from persons lacking authorized access.

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; ADJUDICATOR NEED NOT RULE ON WHETHER EACH DOCUMENT PRODUCED BY COMPLAINANT INVOLVED PROTECTED ACTIVITY WHERE EVIDENCE PRESENTED MADE IT SAFE TO ASSUME THAT COMPLAINANT HAD ENGAGED IN SUCH ACTIVITY

In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.

The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES

In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:

   Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

Id., USDOL/OALJ Reporter at 18 19 (citations omitted).

The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.

[Nuclear & Environmental Digest XII A]
PROTECTED ACTIVITY; MUST BE IDENTIFIED BEFORE CONSIDERATION OF WHETHER ADVERSE ACTION WAS TAKEN IN RETALIATION

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB held that

In view of the role of protected activities in the retaliatory intent analysis, identification of the activities that were engaged in that are statutorily protected is a crucial first step. The chronology of protected activities and personnel actions is also important, as temporal proximity between protected activity and the decision to take an adverse action is relevant to the determination whether such action was motivated by retaliatory intent. ... Thus, as is hereinafter more fully discussed, the failure of the ALJ to first identify which of Melendez' activities qualified for protection makes it impossible to determine which of Exxon's actions taken against Melendez were taken for wholly legitimate reasons rather than in retaliation for Melendez having engaged in such activity.

Slip op. at 12 (citation omitted). A concurring opinion by the Chair of the ARB clarified that "[e]ven in cases in which the ALJ or this Board ultimately conclude that no unlawful discrimination took place, the preliminary step of evaluating the protected or non-protected status of the actions that prompted the complaint is procedurally useful, helping to focus the discrimination inquiry." Slip op. at 43-44. The concurrence, however, also observed in a footnote that "[o]f course, it generally would not be necessary to explore the 'protected activity' question in cases where no adverse action has occurred. However, it is undisputed in this case that Melendez suffered an adverse action, i.e., he was discharged." Slip op. at 44 n.55.

[Nuclear & Environmental Digest XII A]
NEXUS BETWEEN PROTECTED ACTIVITY AND OBJECTIVE OR PURPOSE OF THE ERA

In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ cited Van Beck v. Daniel Construction Co., 1986-ERA-26 (Sec'y Aug. 3, 1998) at 3, for the proposition that "in order for jurisdiction to attach under §5851, a nexus must be established between the alleged protected activity and the objective or purpose of the ERA." The ALJ concluded that an investigation to rule covered materials under the Atomic Energy Act "in" or "out" as a cause of elevated levels of leukemia in an area of a school provided sufficient nexus to be covered.

[N/E Digest XII A]
PROTECTED ACTIVITY AS CONTRIBUTING FACTOR TO ADVERSE EMPLOYMENT ACTION

Under the ERA whistleblower provision, if a complainant successfully proves that his or her protected activity was a "contributing factor" to the adverse action, the respondent must then demonstrate "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior." 42 U.S.C. §5851(b)(3)(D). This is a lesser standard than the "significant," "motivating," "substantial," or "predominant" factor standard sometimes articulated in case law under statutes prohibiting discrimination. See Procedures for the Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 63 Fed. Reg. 6614, 6615 (1998) (to be codified at 29 C.F.R. §24.5(b)(2)).

Van Der Meer v. Western Kentucky University, 95-ERA-38 (ARB Apr. 20, 1998).

PROTECTED ACTIVITY; UNDERLYING NUCLEAR SAFETY CONCERN
[N/E Digest XII A]

Where scaffolding at a nuclear power facility is subject to specifications set by OSHA and standards imposed by the NRC for seismic activity, and the Complainant voiced concerns extending to the NRC standards, the Complainant's complaint was cognizable under the ERA whistleblower provision as it involved nuclear safety. Smith v. Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996).

XII A Theory of protection linked to other employee's protected activity

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), there was no evidence that one Complainant had engaged in protected activity under the ERA. Her theory of coverage was that the Respondent discharged her and another co-worker with whom she had been involved in running an unauthorized private business while on Respondent's facility, in an effort to obscure its motives. The Secretary had already found that the other Complainant was not retaliated against for protected activity, and thus also dismissed the linked retaliatory theory.

[Editor's note: Since the Secretary found no retaliatory discharge, he did not need to address directly the second Complainant's theory. In a STAA case, Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), the Secretary rejected a theory of the Complainant's discharge being derivative of another Complainant's protected activity. Hollis may be distinguishable, however, because the STAA requires a Complainant to seek and be unable to obtain correction of an unsafe condition. In Hollis, the Complainant refused a driving assignment because he was going to help his son-in-law to have a truck inspected at a rest stop. He did not tell the Respondent why he was refusing the assignment.]

XII.A. Relation to environmental or nuclear safety

In Tyndall v. United States Environmental Protection Agency, 93-CAA-6 (ALJ Oct. 12, 1994), the ALJ recommended dismissal of the complaint because Complainant did not engage in protected activity under the CAA. The Complainant was a special agent of the EPA's Office of Inspector General ("OIG"), who contended that he engaged in protected whistleblower activity by reporting alleged official misconduct, and alleged wrongful interference by EPA-OIG management during an official investigation assigned to Complainant. Complainant argued that he was "on the trail of a major contracting fraud and organizational conflict of interest involving selection of and doing business with a contractor doing computer modelling and environmental research for EPA. . . ."

The ALJ concluded that Complainant's allegations afforded no basis for CAA relief because such allegations are not related to environmental safety or violations of the CAA. The only connection between the investigation and the CAA is the fact that the contract under investigation had to do with acid rain research, too tenuous a connection to establish coverage.

XII.A. Concerns "touching on" the environment

Concerns that "touch on" the environment can be protected activity.

Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994).

XII.A. Contact after adverse action

A complaint filed with the NRC only after the adverse employment action is not protected activity. Kahn v. Commonwealth Edison Co., 92-ERA-58 (Sec'y Oct. 3, 1994).

XII.A. Respondent's awareness

Where it was undisputed that Complainant filed complaints with the Nuclear Regulatory Commission, Texas Utilities Electric's Corporate Security, and the Sommerville County Sheriff only after his lay off, he failed to establish that he engaged in protected activity prior to the challenged adverse action.

Moreover, there was no evidence indicating that Respondent was aware of Complainant's concerns at the time the lay off decision was made.

Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7, 1994).

XII a Protection for spouse of whistleblower

In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (ALJ Jan. 19, 1995), the ALJ accepted the theory of a Complainant that he should be considered to have engaged in protected activity because of his spouse's activities. Marshall v. Georgia Southern College, 489 F. Supp. 1322 (M.D. Ga. 1980), aff'd, 765 F.2d xx (11th Cir. 1985). Nonetheless, the ALJ found no evidence that the Complainant had been retaliated against because of his spouse's activities on a timely filed complaint.

[Nuclear and Environmental Digest XII B 1 a]
PROTECTED ACTIVITY; PARTICIPATION IN INTERNAL INVESTIGATION; COMPLAINANT LOSES PROTECTED STATUS WHERE HIS PARTICIPATION HAMPERS RATHER THAN ASSISTS THE PURPOSES OF THE ENVIRONMENTAL ACTS

In Caldwell v. EG&G Defense Materials, Inc., ARB No. 05-101, ALJ No. 2003-SDW-1 (ARB Oct. 31, 2008), the ARB held that the Complainant's initial participation in an internal investigation of a hazardous waste incident was protected activity under the SDWA because it was an action to further the purpose of the environmental acts to protect the public health and the environment. The Complainant's participation, however, lost its protected status when the Complainant made unwarranted assurances to the investigatory team concerning the installation and operation of valves, and failed to fully disclose critical information that delayed the team's discovery of the source of agent leaks and contributed to another agent migration. At that point, therefore, the Complainant's participation no longer furthered the purpose of the acts. The ARB wrote: "Instead of furthering the purpose of the environmental acts, his participation in the investigation actually endangered the public health and the environment. If we were to adopt Caldwell's argument that such conduct is protected activity, employees would be entitled, under the guise of protected activity, to interfere with internal investigations while also avoiding disciplinary action and successfully maintaining a claim against their employers if the employers take adverse action for their misconduct."

XII.B.1.a. Internal complaints under CERCLA & SWDA

Reporting safety and environmental concerns under the CERCLA and the SWDA internally to one's employer is protected activity.

Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994).


[N/E Digest XII B 1 a]
INTERNAL COMPLAINTS; 1992 AMENDMENTS TO ERA

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).

XII B 1 a Internal safety complaints as protected activity

The Nuclear Regulatory Commission takes the position that internal safety complaints are within the scope of "protected activities" under 10 CFR § 50.7. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), 51 Fed Reg 25127 (docket nos. 50-413, 50-414, EA 84- 93) (order imposing civil money penalty, July 10, 1986), adopting the view of 9th Circuit, Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) and the 10th Circuit, Kansas Gas and Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), and rejecting the view of the 5th Circuit, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

XII B 1 b Internal safety and quality control complaints

Section 5851 protects quality control inspectors from retaliation based on internal safety and quality control complaints. The whistleblower provision of the ERA has a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality. Quality control inspectors play a crucial role in NRC's regulatory scheme. Every action by quality control inspectors occurs "in an NRC proceeding" because of their duty to enforce NRC regulations. This ruling does not require companies to retain "abrasive, insolent, and arrogant" quality control inspectors if they comply technically with the requirements of the job. The ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by section 5851 may not discharge quality control inspectors because they do their jobs too well. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

[N/E Digest XII B 1 b]
PROTECTED ACTIVITY; INTERNAL COMPLAINTS

In United States v. Dr. Warren E. Smith Community Mental Health/Mental Retardation and Substance Abuse Centers, 1997 U.S. Dist. LEXIS 9424 (E.D. Pa. 1997), a qui tam action under the False Claims Act (FCA), 31 U.S.C. 3730(b)(1), the court relied principally on Passaic Valley Sewerage Commr's v. United States Dept. of Labor, 992 F.2d 474 (3d Cir. 1993), which concluded that internal complaints were protected activity under the Federal Water Pollution Control Act (FWPCA)'s whistleblower provision, in interpreting the employee protection provision of the FCA. The court concluded that Congress had considered other whistleblower provisions such as that found in the FWPCA when enacting the FCA whistleblower provision.

XII B 1 b PROTECTED ACTIVITY; INTERNAL COMPLAINT DEFINED

An internal complaint is one lodged with a supervisor of the company itself. An external complaint is one lodged with an outside agency, such as the NRC. Kahn v. United States Secy. of Labor, 1995 U.S. App. LEXIS 24111 (7th Cir. 1995) (recognizing that other circuits and the Secretary had treated pre-1992 ERA complaints as protected activity).

XII B 1 b Intracorporate complaint is protected activity

In Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, 992 F.2d 474 (3rd Cir. 1993), the court held that the employee protection provision of the Clean Water Act, 33 U.S.C. § 1367(a), extends to wholly intracorporate complaints (pursuit of internal remedies and voluntary remediation, rather than automatic start of formal investigations and litigation, is to be encouraged).

XII B 1 b Internal complaints

Reviewing the statutory language of section 5851 of the ERA, its legislative history and that of the employee protection provisions of the Acts upon which is was modeled (CAA, FWPCA, NLMA, FMSA) and the implementing regulations of both DOL and NRC, the court in Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986), held that internal complaints are protected under section 5851.

XII B 1 b. Summary of circuits recognizing internal complaints as protected activity

In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3 (ALJ Nov. 29, 1993) (order denying respondent's motion for summary decision), Respondent contended in a motion for summary decision that internal safety complaints are not covered by the whistleblower statutes, citing Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The ALJ noted that

Of the United States Courts of Appeal that have addressed this issue, only the Fifth Circuit has held that internal complaints are not protected activity, whereas the Tenth, Ninth and Second Circuits have held that internal safety complaints are protected whistleblower activity. Kansas Gas and Elec. Co. v. Brock, 478 U.S. 1011, 1011-12; 106 S. Ct. 3311, 331-12 (1986)(White, J. dissenting to denial of certiorari). In addition, while not specifically addressing the issue of internal safety complaints, the U.S. Court of Appeals for the Eighth Circuit upheld the Secretary of Labor's determination that an employee who "threatened to bring various safety and quality-control complaints to the attention of the Nuclear Regulatory Commission, and had raised these kinds of concerns with his supervisors," had engaged in protected activity. Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). Furthermore, the Secretary of Labor has consistently held that internal safety complaints are protected activity, Keith E. Conaway, No. 91-SWD-4 (Sec'y Jan. 5, 1993). See also Chilton D. Williams, No. 88-SWD-3 (Sec'y June 24, 1992); Wagoner v. Technical Products, Inc., No. 87-TSC-4 (Sec'y Nov. 20, 1990).

The ALJ concluded that internal complaints are cognizable in the Eighth Circuit.

XII B 1 b Internal safety reports

An employee who is retaliated against for filing internal reports concerning situations of nuclear regulatory laws has recourse under the ERA. Jones v. Tennessee Valley Authority, 1991 US App LEXIS 25777 (6th Cir. 1991) (but noting split between 5th and 10th circuits).

XII B 1 b Internal reports as protected activity

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).

The Secretary of Labor interpreted Section 5851 of the ERA to protect quality control inspectors from retaliation based on internal safety and quality control complaints, extending coverage of the ERA to internal activities. KG&E contends that if the statute is read to include internal complaints then a fundamental facet of the employer/employee relationship is infringed. The Court of Appeals examined the pertinent language of the statute and the construction given to Section 5851 by the Mackowiak court. It found that the phrase "proceeding or any other action" does not require a formal proceeding in order to invoke the protection of the Act. Therefore, purely internal complaints are covered by the ERA. The Court of Appeals recognized the different result reached in Brown and Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984). In its view, the construction of the ERA there was incorrect because it takes no notice of the agency regulations, tries to liken the term "action" as synonymous with "proceeding," contends that such employment determinations are outside the competence of the Secretary of Labor because matters concerning nuclear safety are exclusively involved, and discovers nothing in the legislative history to support a broad construction of Section 5851.

XII B 1 b Internal Complaints

In Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, 992 F.2d 474 (3rd Cir. 1993), the Complainant was employed by the Respondent, a water treatment facility, as as the head of a laboratory that analyzed water samples pursuant to an ad valorem user charge system in which the users of the facility took their own water samples. Over a period of years, the Complainant reported extensively to PVSC officials that the user charge system violated the FWCPA. The Complainant was subsequently terminated from his employment with PVSC.

The Court of Appeals for the Third Circuit held that the "statute's purpose and legislative history allow, and even necessitate, extension of the term 'proceeding' to intracorporate complaints." Accordingly, the Third Circuit affirmed the findings of the Secretary that the Complainant had engaged in a protected activity.

XII B 1 b 11th Circuit recognizes internal complaints as protected activity in ERA proceedings

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 Eleventh Circuit joined the majority of other circuits holding that internal complaints may constitute protected activity under the ERA whistleblower provision as it existed prior to the 1992 amendments. The 1992 amendments explicitly recognize internal complaints as protected activity.

The court found it appropriate to defer to the Secretary's construction of the statute pursuant to Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), noting that the Secretary had construed the legislative history, that it was appropriate to give a broad construction to nondiscrimination provisions in federal labor laws, and that it found the analysis in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), wanting.


XII B 1 c Internal reports as protected activity

Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

Section 5851(a)(3) cannot be construed to protect the filing of intracorporate quality control reports which are purely internal quality control reports. Absent contact with an organ of government, the employee cannot make out a claim under Section 5851. The basic structure of the ERA is not designed to modify the employee-employer relationship, but rather to rely on corporate officers to manage the corporation in compliance with their obligations to ensure public safety.

[Nuclear and Environmental Whistleblower Digest XII B 1 c]
PROTECTED ACTIVITY; INTERNAL COMPLAINT; 5TH CIRCUIT CONCEDES THAT BROWN & ROOT WAS INCORRECTLY DECIDED

In Willy v. Administrative Review Board, USDOL, No. 04-60347 (6th Cir. Aug. 24, 2005) (case below ARB No. 97-107, 1985-CAA-1), the Fifth Circuit in a footnote conceded "Congress clarified by statute [i.e., the 1992 amendments to the ERA] that Brown & Root[, 747 F.2d 1029 (5th Cir. 1984),] was incorrect in holding that complaints to employers were not protected under 42 U.S.C. § 5851. Slip op. at n.9. In other words, Congress clarified that internal complaints are protected activity under the whistleblower provision of the ERA.

[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINT AS PROTECTED ACTIVITY IN FIFTH CIRCUIT; PRE-1992 AMENDMENT ACTIVITY, BUT POST-AMENDMENT FILING OF COMPLAINT

In Paynes v. Gulf States Utilities Co., ARB No. 98-045, ALJ No. 1993-ERA-47 (ARB Aug. 31, 1999), the Respondent argued that Complainant did not engage in protected activity because the filing of internal complaints was not deemed protected under the ERA in the Fifth Circuit where this matter arose. See Brown and Root v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984). The ARB rejected this argument because the ERA was amended to specifically include the filing of internal complaints by the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). Complainant's internal complaint was made prior to the enactment of the 1992 amendments, but he did not file his ERA complaint until after the effective date of the amendment of the ERA.

[Nuclear & Environmental Digest XII B 1 c]
INTERNAL COMPLAINTS UNDER PRE-1992 AMENDMENTS ERA

In Macktal v. U.S. Dept. of Labor, No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), the court declined to revisit the 5th Circuit decisions in Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) and Ebasco Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. Feb. 19, 1993), which held that purely internal complaints were not protected by the ERA whistleblower provision as it existed prior to the 1992 amendments to the ERA.

[Nuclear & Environmental Digest XII B 1 c]
WRITTEN EXPRESSION OF INTENT TO FILE COMPLAINT WITH NRC CONSTITUTED PROTECTED ACTIVITY EVEN UNDER PRE-1992 AMENDMENTS ERA

In Macktal v. U.S. Dept. of Labor, No. 98-60123 (5th Cir. Apr. 13, 1999) (case below 1986-ERA-23), the court held that a written expression of intent to file a complaint with the NRC constituted protected activity under Section 210 of the ERA as it existed prior to the 1992 amendments (the whistleblower provision is now found in Section 211 of the ERA).

XII. B. 1. c. Fifth Circuit's position on internal complaints

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), a case arising in the Fifth Circuit, Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent raised the argument that Complainant's internal complaints of violations of the environmental laws are not protected activities under the Fifth Circuit's decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

The Secretary noted that this issue had already been decided in an earlier decision in the case, Willy v. The Coastal Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8. The Secretary also held that Brown & Root is applicable only to the ERA and did not purport to interpret the environmental whistleblower laws at issue in this case.

[Editor's note: The 5th Circuit noted the Secretary's nonacquiescence to Brown & Root with apparent disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), although the issue was not squarely addressed in that decision.]

XII. B. 1. c. Fifth Circuit's position on internal complaints

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), a case arising in the Fifth Circuit, Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent raised the argument that Complainant's internal complaints of violations of the environmental laws are not protected activities under the Fifth Circuit's decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

The Secretary noted that this issue had already been decided in an earlier decision in the case, Willy v. The Coastal Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8. The Secretary also held that Brown & Root is applicable only to the ERA and did not purport to interpret the environmental whistleblower laws at issue in this case.

[Editor's note: The 5th Circuit noted the Secretary's nonacquiescence to Brown & Root with apparent disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), although the issue was not squarely addressed in that decision.]

XII B 1 c Protected activity: Intracorporate quality control report

The filing of an intracorporate quality control report is not protected activity under 42 USC § 5851(a)(3). Absent the employee's contact or involvement with a competent organ of government, he or she cannot make out a claim under section 5851. In making this finding, the court found no support in the statutory language for inclusion of internal reports as whistleblowing activity, concluded that DOL was not entitled to deference in the interpretation of the statute, and found no persuasive support in the legislative history for including internal reports as protected activity. In short, the court found that the structure of the ERA indicates that section 5851 is designed to protect "whistleblowers" who provide information to governmental entities, not to the employer corporation. If a corporate officer fails to act on an internal report critical of safety conditions, he is liable under section 5846. Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

XII B 1 c Split in circuits

Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

This case created a split in the circuits on the issue of whether the filing of purely internal complaints constitutes protected activity, specifically with the Ninth Circuit's holding in Mackowiak v. University, 735 F.2d 1159 (9th Cir. 1984), that internal quality control reports are protected activity. According to the Fifth Circuit, Mackowiak is predicated primarily on what the Ninth Circuit perceived as similarities between the provisions of the Mine Safety Act (MSA) and Section 5851, although MSA contains language expressly protecting internal filings and Section 5851 does not. The court also specifically rejects the following rationale in Mackowiak for extending protection: "In a real sense, every action by quality control inspectors occurs 'in an NRC proceeding,' because of their duty to enforce NRC regulations." The Fifth Circuit Court of Appeals does not find any support for this theory in the language, legislative history, or structure of the ERA. Nor does the court see a principled way to "contain" the consequences of making every action by nuclear corporations an occurrence in an NRC proceeding, because of their duty to enforce the regulations.

XII B 1 d i Secretary's position on internal complaints

In the Secretary's opinion, the CAA's language is broad enough to protect internal employee complaints, and to prohibit employer discrimination because of such complaints.

After reviewing similar decisions involving similar employee protection provisions of the ERA, the Mine Safety Act, and the Fair Labor Standards Act, and the legislative history of the CAA, the Secretary enumerated the policy reasons for protecting internal complaints:

  • there is no principled reason for denying protection to internal employee complaints; employees who have the courtesy to take their concerns first to their employers to allow a chance to correct any violations without the need for governmental intervention have as much need for protection as do employees who first go to the government with their concerns.

  • the scope of the prohibited employer discrimination should not be narrowed by allowing discrimination against employees whose complaints are internal; a complainant may be silenced if an employer fears that the complainant will go to the government.

  • both employers and the government benefit from protecting internal complaints. Employers gain from being given an early opportunity to correct problems without government intervention, and the government is relieved from the need to commit its limited resources to investigating and resolving problems that could be informally corrected.

Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (order of remand).

[Nuclear & Environmental Digest XII B 1 d i]
PROTECTED ACTIVITY; FIFTH CIRCUIT

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB noted in a footnote that the holding of Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), that internal complaints were not protected by the employee protection provision of the Energy Reorganization Act, 42 U.S.C. §5851 (1982), then in effect, has not been extended by the Secretary of Labor beyond cases that arise within the Fifth Circuit and which are subject to the ERA provisions in effect prior to October 24, 1992, when ERA amendments providing express coverage of internal complaints took effect. The member thus found that in the present case, arising under the CAA and TSCA, the view that internal complaints are covered would be applied even though the case arose in the Fifth Circuit.

INTERNAL COMPLAINTS; INFORMALITY OF COMPLAINT
[N/E Digest XII B 1 d i and XII C 1]

In Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996), the Board found that the ALJ correctly recognized that internal complaints were protected under the whistleblower provisions of the pertinent environmental statutes. The Board, however, stated that it was reluctant to accept the ALJ's decision insofar as the ALJ at points suggested that he was reluctant to find Complainant's alleged complaints to be protected activity because they were both internal and informal.

The Board observed that an informal and internal safety complaint may constitute protected activity. Slip op. at 5, citing, Nichols v. Bechtel Construction, Inc., 87-ERA-44, slip op. at 10 (Sec'y Oct. 26, 1992) (employee's verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed, No. 92-5176 (11th Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp., 86-ERA-39, slip op. at 1, 3 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected).

The Board emphasized that "[i]nternal safety complaints are covered under the environmental whistleblower statutes in the Eighth Circuit, the Fifth Circuit and every other circuit. See Amendments to the ERA in the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776." The Board noted that "[t]he only current exception to this rule is for cases filed in the Fifth Circuit under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1988), prior to October 24, 1992."

XII B 1 d i Internal complaints are covered

Internal complaints are protected activities under the ERA. Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).

XII B 1 d i Internal complaint as protected activity

In Helmstetter v. Pacific Gas & Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993), the ALJ erred in concluding that the complainant's internal complaint to the respondent's environmental staff was not tantamount to participating in a proceeding under the TSC or SWD and thus was not protected. Reporting violations of environmental statutes internally to one's employer is protected activity under whistleblower provisions. Guttman v. Passaic Valley Sewerage Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992, slip op. at 11, appeal docketed, No. 92-3261 (3d Cir. May 13, 1992); Wagoner v. Technical Products, Inc.,87-TSC-4 (Sec'y Nov. 20, 1990), slip op. at 8-12; Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3.

XII B 1 d i. Internal complaints are protected activity

It is protected conduct for an employee to file internal quality control reports and to make internal complaints regarding safety or quality problems. Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993).

XII B 1 d i Internal Complaints

In Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec'y Mar. 13, 1992), the Complainant was employed by the Respondent, a water treatment facility, as as the head of a laboratory that analyzed water samples pursuant to an ad valorem user charge system in which the users of the facility took their own water samples. Over a period of years, the Complainant reported extensively to PVSC officials that the user charge system violated the FWCPA. The Complainant was subsequently terminated from his employment with PVSC.

The Secretary held that the Complainant's internal complaints were protected activity since the paramount purpose of the whistleblower provision of the FWCPA is the protection of employees. This purpose would be frustrated by failing to protect employees who report violations internally to their employers.

[Editor's note: Guttman was affirmed: 992 F.2d 474].

XII B 1 d i Internal complaint under SWDA

The Complainant's internal safety complaints to his superiors about potential violations of the SWDA and other safety concerns constitute protected activity under the Solid Waste Disposal Act, as amended, 42 U.S.C. § 6971 (1988) and applicable case law. See Williams v. TIW Fabrication & Machining, Inc., 88- SWD-3 (Sec'y June 24, 1992); Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990). The Secretary has consistently held that reporting safety and quality problems internally to one's employer is a protected activity under the SWDA and other environmental statutes enumerated in 20 C.F.R. § 24.1. Citations omitted.

Conaway v. Valvoline Instant Oil Change, Inc., 91- SWD-4 (Sec'y Jan. 5, 1993).

XII B 1 d i Internal complaints

The Secretary continues to adhere to his position that it is protected conduct for an employee to file internal quality control reports and to make internal complaints regarding safety or quality problems. Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993).

XII B 1 b ii Secretary's refusal to acquiesce to Brown & Root in 5th Circuit

Although finding that the complainant made an external complaint when he reported an oil spill to the Coast Guard, the Secretary noted that she believes that reporting violations internally is a protected activity, and made an alternative finding that the complainant engaged in protected activity when he made an internal complaint to personnel employed by a waste disposal company which contracted with respondent to provide a crew boat. The Secretary noted that her reasons for refusing to follow Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), were more fully stated in Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992), slip op. at 5-10, appeal docketed, No. 92-4576 (5th Cir. June 1, 1992), and Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-4, 8.

Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

[N/E Digest XII B 1 d ii]
INTERNAL COMPLAINTS; PRE-1992 COMPLAINT ARISING IN FIFTH CIRCUIT; COMPLAINANT'S THREAT TO GO TO GOVERNMENT OFFICIALS; REFUSAL TO WORK

The ARB will follow the decision of Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), in an ERA case, where the case arose in the Fifth Circuit prior to the 1992 amendments to the ERA that provided explicit protection for internal safety or health complaints. Brown & Root states a minority opinion that the ERA (prior to the 1992 amendments) did not protect internal complaints. See Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998).

In Macktal, the ALJ concluded that Complainant engaged in protected activity under Brown & Root, because he indicated on his last day of employment that he would file complaints with government agencies, including the NRC. The ARB concluded that Brown & Root did not even permit these kinds of actions by a Complainant, even though the pre-1992 ERA protected an employee who is about to commence a proceeding.

Complainant also alleged that his request to be relieved of his duties was protected activity; the ARB, however, found that refusal to work is simply an internal complaint subcategory.

PROTECTED ACTIVITY; INTERNAL COMPLAINTS; PRE-1992 ERA AMENDMENT COMPLAINTS IN FIFTH CIRCUIT
[N/E Digest XII B 1 d ii]

In pre-1992 amendment ERA cases arising in the Fifth Circuit, the Secretary acquiesces to the holding in Brown and Root, Inc. v. Donovan, 747 F.2d 1029, 1035-36 (5th Cir. 1984), that purely internal complaints are not protected activity under the ERA.

XII B 1 d ii Internal complaint covered

In Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986), the Secretary held that allegations of being "passed over" and "relegated to the bottom of the organizational chart" and denial of temporary handicapped parking privileges in retaliation for the Complainant's performing his assigned tasks and for identifying deficiencies in Respondent's quality assurance programs, states a cause of action.

The Secretary declined to apply Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). See Richter v. Baldwin Associates, 84-ERA-9 to 12 (Sec'y Mar. 12, 1986) (prior contact with a government agency is not a prerequisite to establishing a protected activity).

The instant case arose in the Second Circuit. The ALJ relied on a distinction made in Brown & Root that the issue of protected activity was not at issue in the Second Circuit case of Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982). The Secretary, however, found that since the only activity engaged in Consolidated Edison was internal reporting the Second Circuit could not be attributed with failing to consider whether purely internal reporting of safety complaints falls within the ambit of section 5851 of the ERA.

XII B 1 d ii Secretary's refusal to follow Brown & Root

In Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988), the court noted that the Secretary had "held" in a concurrent administrative proceeding before the Department of Labor that Brown & Root was incorrectly decided and that the circuit court should be given an opportunity to reconsider its decision in light of Kansas Gas and Mackowiak. In footnote 13 of the decision, the court, however, seems to affirm that intracorporate activities are not recognized under the federal whistleblower protection statutes.

XII B 1 d ii Internal Complaints

An employee's reporting of safety and quality problems internally to his/her employer is a protected activity under the ERA and other environmental statutes enumerated in 29 C.F.R. § 24.1. In a case arising out of the Fifth Circuit, the Secretary declined to follow Fifth Circuit precedent set forth in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), stating that the Secretary "has held consistently" that internal complaints are protected activity.

Bivens v. Louisiana Power & Light, 89-ERA-30 (Sec'y June 4, 1991).

XII B 1 d ii Secretary's criticism of Brown & Root

In Smith v. Norco Technical Services, 85-ERA-17 (Sec'y Oct. 2, 1987), the Secretary criticized the Fifth Circuit's approach in Brown & Root. He noted that section 5851(a) protects an employee who "is about to assist or participate in any manner in [an NRC proceeding]. . . ." Thus, if a complainant is able to prove that he was "about" to make a complaint to the NRC, that clearly would be protected activity. But he would not have been protected under Brown & Root if he only made a complaint to his employer and did not threaten to go to the NRC. The Secretary found "no logical reason for treating an employee differently, exposing him to discharge in the latter case for essentially the same conduct for which he otherwise would receive full protection."

XII.B.1.d.ii. Secretary acquiesces in 5th Circuit

In Boyd v. ITI Movats, 92-ERA-43 (Sec'y June 7, 1994), the Secretary found that Complainant did not establish that he engaged in protected activity prior to his lay off. Complainant's expressions of concern to his immediate supervisors prior to his lay off were internal complaints, and the U.S. Court of Appeals for the Fifth Circuit, whose decisions are controlling in this case, has held that internal complaints are not protected under the ERA. Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984); Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Aug. 16, 1993).

The Secretary noted that the U.S. Court of Appeals for the Fifth Circuit was the only federal circuit to hold that internal complaints were not protected under the ERA. On October 24, 1992, the ERA was amended to provide express coverage for internal complaints, in effect overruling Brown & Root v. Donovan. See Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992).

[Editor's note: The ERA amendments may not affect the 5th Circuit's view in regard to other statutes covered by 29 C.F.R. Part 24. The Secretary's aquiescence is a change of position. In a series of earlier decisions, he had declined to acquiesce, even within the 5th Circuit. See, e.g., Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Apr. 7, 1992).]

XII B 1 d ii Secretary's position on internal complaints

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987) (order of remand), the Secretary explained why he declined to follow the decision of the Fifth Circuit in Brown & Root. Based on the legislative history, the Secretary concluded that the ERA, the CAA and the FWPCA should be interpreted in a parallel with the National Labor Relations Act and the Coal Mine Health and Safety Act. Both of the latter Acts had been interpreted broadly to include internal complaints. In addition, other employee protection laws have been interpreted broadly to protect internal complaints. The Secretary instructed the ALJ on remand not to follow Brown & Root even though the case arose in the Fifth Circuit.

The Secretary stated that he recognized that administrative agencies are bound to follow the law of the circuit in which a case arises, conflicting decisions of other circuits notwithstanding, unless and until the Supreme Court resolves the conflict. Based on the Supreme Court's denial of certiorari in Kansas Gas & Electric v. Brock, 780 F.2d 1505 (1985), cert. denied, 106 S. Ct. 3311 (1986), a case in which internal complaints were found to be protected under the ERA, the Secretary concluded that the Fifith Circuit "should be given another opportunity to consider whether internal complaints are protected".

[Editor's note: In footnote 13 of Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988), the Fifth Circuit appears to have declined the Secretary's invitation. This case involved the question of removal of the Complainant's state law based wrongful discharge case to federal court, and the internal complaint issue was not the focus of the decision.

The ALJ, apparently without knowledge of this related case, held on remand from the Secretary that he was constrained not to follow Brown & Root. Willy v. The Coastal Corp., 85-CAA-1 (ALJ Nov. 29, 1988). The ALJ found that the Complainant carried his burden of proof, but recommended denial of relief because the Complainant had knowingly presented misleading evidence.]

XII B 1 d ii Reporting violations internally

Reporting violations internally is a protected activity under the ERA whistleblower provision. Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 8-10 (declining to follow Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984) in the Eleventh Circuit, where there is no controlling authority).

XII B 1 d ii Nonacquiescience to Brown & Root; internal complaint as protected activity

In a case arising in the Fifth circuit, the Secretary declined to follow Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), with respect to a whistleblower who alleged only an internal complaint. In declining to follow Brown & Root, the Secretary cited S & H Riggers & Erectors, Inc. v OSHRC, 659 F.2d 1273, 1278 (5th Cir.), quoting the following language from that decision: where an administrative agency respectfully declined to follow Fifth Circuit view that conflicted with the agency's view, the court "assume[d] without deciding that [agency] is free to decline to follow decisions of the courts of appeal with which it disagrees, even in cases arising out of those circuits. . ."

Bivens v. Louisiana Power & Light, 89-ERA-30 (Sec'y June 4, 1991).

XII B 1 d ii Secretary's position that internal complaints in SWDA and WPCA complaints are protected activity, even in the 5th Circuit

In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995), the Secretary held that internal complaints are protected activity under the SWDA and the WPCA, even in the Fifth Circuit. The Secretary distinguished Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), based on the 1992 amendments to the ERA, which legislatively overturned that decision.

[Editor's note: In Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), the Fifth Circuit noted, with apparent disapproval, the Secretary's nonacquiescence with the logic of Brown & Root concerning an internal complaint in a CAA case. Only the ERA was changed to include internal complaints explicitly. Thus, it is not a foregone conclusion that the Fifth Circuit's position is changed by the 1992 ERA amendments in regard to the environmental whistleblower provisions.]

XII B 1 d ii Internal complaint under CAA in Fifth Circuit; Brown & Root does not govern

In West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995), the Secretary held that a whistleblower complaint lodged with the respondent is a protected activity under the Clean Air Act, even in the Fifth Circuit. The Secretary distinguished the Fifth Circuit's holding in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), that internal complaints are not protected under the ERA whistleblower provision on the grounds that (1) Brown & Root was legislatively overturned, effective Oct. 24, 1992, and (2) the Secretary's consistent position that, even in the Fifth Circuit, internal complaints are protected activity. Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987), slip op. at 8; Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), appeal docketed, No. 94-40734 (5th Cir.)

In a footnote, the Secretary noted that the parties and the ALJ made reference to In re Willy, 831 F.2d 545 (5th Cir. 1987), and Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988), aff'd 112 S. Ct. 1076 (1992). He stated that reliance on these decisions was misplaced because the issue of internal complaints was not considered by the Court of Appeals in either of those cases.

[Editor's note: In Willy v. Coastal Corp., 855 F.2d 1160 n. 13 (5th Cir. 1988)aff'd 112 S. Ct. 1076 (1992), which concerned the Complainant's concurrent state wrongful termination action, the Fifth Circuit noted the Secretary's nonacquiescence on the internal complaint issue, and although it did not squarely address the nonacquiescence issue, appeared to affirm its position that internal complaints are not covered.

While the ERA legislatively overturned Brown & Root in 1992, the Fifth Circuit's analysis in Brown & Root relied extensively on the wording of the ERA at the time. The 1992 amendments to the ERA in no way affected the wording of the CAA, which remains closely related to the wording of the pre-amendment ERA.

See also the recent decision 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), in which the Eleventh Circuit joined the majority of other circuits holding that internal complaints may constitute protected activity under the ERA whistleblower provision as it existed prior to the 1992 amendments. The court explicitly rejected the reasoning in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).]

XII B 1 d ii Secretary acquiesces in Brown & Root for pre-1992 amendment complaints

In a complaint filed in the Fifth Circuit prior to the effective date of the 1992 amendments to the ERA, Complainant's internal complaints were not protected pursuant to Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984); Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y Aug. 16, 1993), rev'd on other grounds sub nom. Ebasco Constructors v. Martin, No. 92- 4576 (4th Cir. Feb. 19, 1993) (unpublished).

Grover v. Houston Lighting & Power, 93-ERA-4 (Sec'y Mar. 16, 1995) (noting that the 1992 legislatively reversed Brown & Root).

XII B 1 d iii Internal complaints under CERCLA

Filing internal complaints is protected activity under CERCLA. In addition, personnel other than quality control inspectors can be protected for their internal complaints. Pogue v. United States Dept. of the Navy, 87-ERA-21 (Sec'y May 10, 1990), rev'd on other grounds, Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987).

XII B 1 d iii Employees who are not quality control inspectors and who make internal complaints

The making of internal safety complaints is protected activity even when made by employees who are not quality control inspectors. Nunn v. Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987) (remand) (ALJ had ruled that Brown & Root was applicable because Mackowiak did not apply to employees other than quality control inspectors).

XII B 1 e Complaining to company that contracted for respondent's services as an internal complaint

In Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992), the complainant observed an oil spill and complained to the foreman of a waste disposal crew. The waste disposal company had contracted with the complainant's employer (the respondent) to provide crew boat services. The complainant was the skipper of the crew boat. The Secretary held that even though the complainant did not work for the waste disposal company, his complaint was an internal complaint. She based that holding on the Fifth Circuit's definition of "external" complainants: "the employee's contact or involvement with a competent organ of government. . . ." Brown & Root, 747 F.2d at 1036.

[Editor's note: This finding is a bit confusing. It appears that the Secretary is focusing on whether a complaint is internal or external if made to a company that has a service contract with the respondent. She does not appear to reach the question of whether a complaint made to such a company is protected activity at all since it was not made to the respondent. In Adams, however, it is clear that the complaint was eventually communicated to the respondent's president, so the Secretary probably would have not had to reach the second part of the question.]

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

XII B 2 a Complaint to state agency

In Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), Complainant, an industrial waste water treatment plant operator, engaged in protected activity when he complained or "appealed" to the California State Water Resources Control Board about the classification of Respondent's McClellan Air Force Base Waste Water Treatment Plant. (Respondent, however, provided evidence that it reprimanded Complainant for another reason, and Complainant failed to prove pretext).

[Nuclear and Environmental Whistleblower Digest XII B 2 a]
PROTECTED ACTIVITY; REPORT TO LOCAL FIRE DEPARTMENT

Complaints to and cooperation with local authorities are protected under the whistleblower provisions; thus Complainant's report to a local fire department of a possible environmental hazard was found to be protected activity in Masek v. The Cadle Co., ARB No.97-069, ALJ No. 1995-WPC-1 @ 7 (ARB Apr. 25, 2000).

XII B 2 a Complaints or cooperation with local authorities as protected activity

Complaints to, and cooperation with, local authorities are protected under DOL whistleblower provisions. See, e.g., Ivory v. Evans Cooperage, Inc., 88-WPC-2 (Sec'y Feb. 22, 1991), slip op. at 2, 5.

Helmstetter v. Pacific Gas & Electric Co., 91- TSC-1 (Sec'y Jan. 13, 1993).

XII B 2 b Release of asbestos and crystalline silica

Under the employee protection provision of the CAA, a complaint about an unsafe or unhealthful condition communicated to management or to an outside agency such as OSHA is protected. Thus, where a complainant made both internal and external complaints over a five-month period about the release of asbestos and crystalline silica into the atmosphere and participated in a regulatory inspection, his complaints "touched on" public safety and health, the environment, and compliance with the CAA. [citations omitted]

Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

[N/E Digest XII B 2 d]
PROTECTED ACTIVITY; PARTICIPATING IN TELEVISION REPORT

Participating in a television report on alleged leakage of radioactive waste is protected activity under the ERA's whistleblower provision. Dobreuenaski v. Associated Universities, Inc., 96-ERA-44 @ 9 (ARB June 18, 1998).

XII B 2 b Contact with OSHA protected under CERCLA even if it concerned solely occupational safety and health

In Post v. Hensel Phelps Construction Co., 94-CAA- 13 (Sec'y Aug. 9, 1995), the ALJ stated that the Complainant's contact with, inter alia, OSHA was an activity protected under the CAA, CERCLA, SWDA, and the TSCA. The Secretary, although adopting the ALJ's decision, clarified this point:

Those acts generally do not protect complaints restricted solely to occupational safety and health, unless the complaints also encompass public safety and health or the environment. . . . In any event, the ALJ correctly noted that a provision in CERCLA protects an employee who "has provided information to a State or to the Federal Government. . . ." 42 U.S.C. § 9610(a). . . . Accordingly, it was correct to find in this case that Post's contact with OSHA was protected activity even if it concerned solely occupational safety and health.

Slip op. at 2 (citations omitted).

XII.B.2.b. Right to bypass "chain of command"

Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y June 3, 1994), the Secretary held that an employee who refuses to reveal his safety concerns to management and asserts his right to bypass the "chain of command" to speak directly with the Nuclear Regulatory Commission is protected under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988).

[Editor's note: The Secretary is apparently reconsidering this ruling. See Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Sept. 12, 1994) (order inviting Wage & Hour Administrator to file amicus brief on Respondent's motion to reconsider).]

The Secretary noted that the Respondent had asserted as grounds for dismissal that the Complainant (1) refused to stay after his regular work day to attend a meeting at which a supervisor again wanted to ask Saporito about his safety concerns, and (2) refused to be examined by a company doctor. The Respondent decision to require the examination grew out of the excuse the Complainant gave for refusing to stay late for the meeting -- the he was ill, and the Complainant's reason for taking 12 days sick leave after the date of the missed meeting, that the Complainant was suffering from stress related medical problems. The Secretary concluded that each of these reasons for discharge is related, at least in part, to Saporito's refusal to reveal his safety concerns to the Respondent, which was protected activity.

XII B 2 c Mere contact with a purported public interest group does not establish protected activity

Mere contact with the Government Accountability Project or the Palmetto Alliance does not establish protected activity. It was error, however, for an ALJ to rule on a motion for summary decision that contact with Palmetto and GAP was not protected activity because Brown & Root required contact with a government agency. Complainant may be able to establish that such contact was related to protected activity. Nunn v. Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987) (remand).

[Editor's note: I think this is the implication of the Secretary's ruling, but I would advise reviewing this discussion yourself. See slip op. at 12-13.]

[Nuclear & Environmental Whistleblower Digest XII B 2 c]
PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS

In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.

[Nuclear & Environmental Digest XII B 2 c]
PROTECTED ACTIVITY; ENVIRONMENTAL ACTIVIST MAKES CONTACT WITH GOVERNMENT OFFICIALS WITHOUT KNOWLEDGE OF COMPLAINANT

In Ferguson v. Weststar, Inc., 1999-CAA-9 (ALJ Jan. 27, 2000), Complainant spoke to a neighbor whom he knew to a be an environmental activist about several allegedly unsafe practices of his employer related to a government contract for sandblasting and removal of lead-based paint from a hammerhead crane. The following day, without Complainant's knowledge, the neighbor sent e-mails to several government offices about Complainant's allegations. A government officer employed to monitor private contracts and enforce contract compliance held a meeting with Complainant and the employer's Project Supervisor to discuss the contents of the e-mail during the meeting Complainant confirmed that he was the source of the information in the e-mail. The ALJ, based on the Secretary of Labor's decisions in Scott v. Alyeska Pipeline Service Co., 1992-TSC-2 (Sec'y July 25, 1995), and Wedderspoon v. City of Cedar Rapids, Iowa, 1980-WPC-1 (Sec'y July 28, 1980), concluded that Complainant had engaged in protected activity: even though Complainant did not contact state or federal authorities directly, the causal nexus was supplied by the activist's contact and subsequent investigation by a government official.

XII B 2 c Protected activity; Contact with private person

Providing information to a private person for transmission to responsible government agencies, or for use in environmental lawsuits against one's employer, is protected activity under the CAA, SWDA, TSCA, and FWPCA. Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Sec'y July 25, 1995), citing Simon v. Simmons Indus., 87-TSC-2 (Sec'y Apr. 4, 1994).

XII B 2 d Comunication to Media

In Wedderspoon v. City of Cedar Rapids, Iowa, 80-WPC-1, (Sec'y July 28, 1980) the Secretary adopted the ALJ's findings (ALJ July 11, 1980). Complainant, employed by Respondent as a water pollution control operator, reported discharge of sludge to a friend who was an "environmental activist". The friend notified a newspaper reporter of the discharge. Thereafter the reporter contacted the Complainant and wrote an article based on information received by the Complainant regarding the sludge discharge. Following the article's appearance in the Des Moines Register, the Iowa Department of Environmental Quality investigated the discharge. The Complainant was subsequently suspended from work for five days without pay for his failure to notify his supervisors of the sludge discharge.

Upon determining that the Respondent had suspended the Complainant without pay in response to the Complainaint's disclosure of the violation rather than for the Complainant's failure to notify his supervisors of the discharge, the ALJ considered whether the Complainant's disclosure was a protected activity. The ALJ concluded that there was a "causal nexus" between the Complainant's communication with the reporter and the subsequent investigation of the discharge by the state. Furthermore, the ALJ determined the State's investigation of the discharge was "a proceeding resulting from the administration or enforcement of the provisions of" the Act since the applicable statutory law of Iowa demonstrated that the Department of Environmental Quality was intended to carry out the provisions of the federal statute as well as supplementing or implementing state law. Accordingly, the Complainant is protected under the Act as an employee who caused the institution of "any proceeding" resulting from the administration or enforcement of the Act."

[Nuclear & Environmental Whistleblower Digest XII B 2 d]
PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS

In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.

PROTECTED ACTIVITY; THREAT TO GO TO THE PRESS; RELEVANCE OF COMPLAINANT'S MIXED OR SELF-SERVING MOTIVES
[N/E Digest XII B 2 d and XII C 3]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Complainant's threat to go the press with his safety concerns was protected activity. His threat was protected even if he also intended to expose matters other than his protected concerns. The ALJ found that the Complainant misused the ERA by raising safety issues only to intimidate management into increasing his performance rating. The Secretary noted, however, that he has held that where the complainant has a reasonable belief that the respondent is violating the law, other motives he or she may have had for engaging in protected activity are irrelevant.

XII b 2 d Protected activity; contact with the press

Contact with the press is protected activity under the whistleblower statutes. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995).

XII.B.2.d. Contact with media

In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), the Secretary held that the Complainant engaged in a protected activity when he met with a newspaper reporter and provided him documents concerning safety at the Respondent's nuclear facility.

  • See Pooler v. Snohomish County Airport, 87-TSC-1 (Sec'y Feb. 14, 1994), slip op. at 5 (speaking to newspaper reporter about safety issue is a protected activity).

  • Cf. Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 17, 1993), slip op. at 23 n.15 (contacting the news media not protected under environmental acts' analogous whistleblower provisions only because the subject matter raised with the media was not an environmental concern), pet. for review filed, No. 93-70834 (9th Cir. Oct. 18, 1993) and Donovan v. R.D. Andersen Const. Co., Inc., 552 F. Supp. 249, 251-253(D. Kan. 1982) (employee's communication to the media protected because it could result in institution of Occupational Safety and Health Act proceeding).

XII B 2 e Complaint to member of general public

In Simon v. Simmons Foods, Inc., 1995 U.S. App. LEXIS 3715 (8th Cir. 1995) (case below 87-TSC-2), the court affirmed the Secretary and ALJ's findings that the Respondent would have discharged the Complainant for the false and potentially damaging statements he made about the company even if he had not engaged in protected activity. In Simon, the Complainant had a discussion with a contractor about the Respondent's use and disposal of heptachlor-contaminated chicken feed. At the time, the Complainant had been cooperating with the government in an investigation of Respondent regarding the alleged use of contaminated feed.

The Court noted that the Secretary had concluded that the statements were not protected activity because making health and safety complaints to a member of the general public (as opposed to a co- worker, employer/supervisor, union officer, or newspaper reporter), without demonstrating that the employee is about to file a complaint or participate or assist in a proceeding, is too remote from the remedial purposes of the relied upon whistleblower provisions to be a protected activity.

XII B 2 f Protected activity; complaint to co-worker

A foreman who had been demoted after making safety complaints on behalf of the crews, engaged in further protected activity when he communicated the situation to the crews, which resulted in their refusal to work unless their safety concerns were addressed. The Secretary characterized this communication as "an early version of [the Complainant's] section 211(b) discrimination complaint, which is protected under section 211(a)(1)(D) as a proceeding commenced or about to be commenced under the ERA. 42 U.S.C. § 5851(a)(1)(D)." Harrison v. Stone & Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995).

[N/E Digest XII B 2 f]
PROTECTED ACTIVITY; EXPRESSION OF SAFETY-RELATED CONCERNS TO FELLOW WORKERS MUST BE VIEWED IN CONTEXT

In Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997)(case below 93-ERA-44), the Eleventh Circuit upheld an interpretation of 42 U.S.C. § 5851(a) "as shielding the expression of safety-related concerns to fellow workers, when . . . that expression has a public dimension and fits closely into an extended pattern of otherwise protected activity." The court did not reach the question of whether such an expression made in an isolated or private communication was sufficient to constitute protected activity, but emphasized that the expression of concern must be viewed in context. The court indicated that section 5851 does not protect every act that an employee commits under the auspices of safety, but concluded that section 5851(a)(1)(F) was purposely drafted by Congress is broad terms.

The court indicated recognition that this approach may cause "some difficulty in distinguishing between offering a shield behind which some employees may incite trouble about a host of non-safety issues, including labor disputes, and one behind which well-intentioned employees may raise an alarm against safety hazards." The court, however, concluded that "this is a balance for the Secretary of Labor to attempt to strike in the first instance. The only question is whether the Secretary's balance here, as we have cast it, is a permissible reading of the whistleblower provision. We think it is."

In Stone & Webster, Complainant was a foreman who had raised concerns internally and to the NRC about a new firewatch scheme (checking at the end of a shift to make sure no fires had broken out). Shortly thereafter he was demoted. Complainant then asked for members of his former crew to be gathered, whereupon he told them about his demotion and his opinion that nothing had been done about the firewatch. The workers decided that they would not work until the fire-safety issue had been resolved. The workers were convinced by a manager to return to work, and later the old firewatch procedures were returned to. The next day, however, Complainant was transferred to less desirable work. Complainant's lost back wages amounted to only about $800, but the NRC had imposed a civil fine of $80,000 based on the Secretary of Labor's finding of retaliation.

PROTECTED ACTIVITY; DISTRIBUTION OF LEAFLET AT COMPANY PICNIC
[N/E Digest XII B 2 f]

In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ALJ Oct. 24, 1995), the ALJ recommended a finding that the Complainant's distribution of a leaflet at a company picnic that raised environmental concerns grounded in conditions reasonably perceived as violations of the FWPCA was protected activity. The ALJ found that the remedial purpose of the statute would not be served if an employer was permitted to retaliate merely because management learned of the employee's disclosure indirectly through another employee.

[N/E Digest XII B 2 g]
COVERAGE

In Ruud v. Westinghouse Hanford Co., 88-ERA-33 (ARB Nov. 10, 1997), the ALJ had found violations of the employee protection provisions of the CAA and the CERCLA, but declined to find coverage under the SDWA which, unlike the CAA and CERCLA, provides for awards of exemplary damages. The ARB disagreed with the rejection of the SDWA complaint because the record established that Complainant had "discussed leakage of nuclear waste into groundwater and the Columbia River during hearings convened by a subcommittee of the United States Congress and during meetings with congressional staff and consultants", and because leakage and unauthorized disposal formed a basis for Complainant's "burial ground audit." The ARB concluded that by compiling and providing information about such contamination, Complainant participated or assisted in a proceeding or other action to promote safe drinking water. Citing, by comparison, Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, at *22 (11th Cir. July 2, 1997) (discussion about nuclear safety compliance during meeting with co-workers constituted an action to carry out purposes of the ERA; employee was protected where "expression has a public dimension and fits closely into an extended pattern of otherwise protected activity").

[Nuclear & Environmental Whistleblower Digest XII B 2 h]
PROTECTED ACTIVITY; PETITIONING CONGRESS; SEEKING A LEGAL OPINION

In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.

The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.

[Nuclear & Environmental Whistleblower Digest XII B 2 h]
PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS

In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.

[Nuclear & Environmental Whistleblower Digest XII B 2 i]
PROTECTED ACTIVITY; PETITIONING CONGRESS; SEEKING A LEGAL OPINION

In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB found that Complainant's petitioning congressional subcommittees about alleged diminished RCRA regulation by the EPA, and complaining internally about inadequate and inappropriate regulation were protected activity. The ARB also held that protection "may" extend to Complainant's efforts to obtain a legal opinion from EPA's Office of General Counsel as to the legality of certain considerations in rulemaking where the effort advanced concern about inappropriate and inadequate regulation.

The ARB found it unnecessary to rule individually on each of numerous documents submitted by the Complainant at the hearing to demonstrate purported protected activity, finding that it was sufficient to find that Complainant had meet her burden of showing protected activity.

XII C 1 Informal safety complaint is all that is required

The ALJ erred in basing his finding of failure to establish a prima facie case in part on Complainant's not having filed a formal complaint. The Secretary stated that an informal safety complaint to a supervisor is sufficient to establish protected activity. Corroborating evidence is not required to establish a prima facie showing of protected activity; the complainant's testimony may be sufficient. Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993).

[Nuclear & Environmental Whistleblower Digest XII C 1]
PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES

In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:

   Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

Id., USDOL/OALJ Reporter at 18 19 (citations omitted).

The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.

INTERNAL COMPLAINTS; INFORMALITY OF COMPLAINT
[N/E Digest XII C 1 and XII B 1 d i]

In Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996), the Board found that the ALJ correctly recognized that internal complaints were protected under the whistleblower provisions of the pertinent environmental statutes. The Board, however, stated that it was reluctant to accept the ALJ's decision insofar as the ALJ at points suggested that he was reluctant to find Complainant's alleged complaints to be protected activity because they were both internal and informal.

The Board observed that an informal and internal safety complaint may constitute protected activity. Slip op. at 5, citing, Nichols v. Bechtel Construction, Inc., 87-ERA-44, slip op. at 10 (Sec'y Oct. 26, 1992) (employee's verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed, No. 92-5176 (11th Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp., 86-ERA-39, slip op. at 1, 3 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected).

The Board emphasized that "[i]nternal safety complaints are covered under the environmental whistleblower statutes in the Eighth Circuit, the Fifth Circuit and every other circuit. See Amendments to the ERA in the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776." The Board noted that "[t]he only current exception to this rule is for cases filed in the Fifth Circuit under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1988), prior to October 24, 1992."

XII C 1 Complaint need only "touch on" subjects regulated by the pertinent statutes

Where the Complainant's complaint to management "touched on" subjects regulated by the pertinent statutes, the complaint constitutes protected activity. See Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 8-9.

XII C 1 Informal complaint to a supervisor

An informal complaint to a supervisor may constitute protected activity. See, e.g., Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (employee's verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed, No. 92-5176 (11th Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected).

Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994) (complainant's questioning his supervisor about an issue related to safety constituted protected activity).

XII C 1 Informal complaint to a supervisor

An informal complaint to a supervisor may constitute protected activity. See, e.g., Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (employee's verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed, No. 92-5176 (11th Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected).

Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994) (complainant's questioning his supervisor about an issue related to safety constituted protected activity).

XII C 2 Existence of "proceeding"

Under 42 U.S.C. § 5861(a) there must be a proceeding either commenced or about to be commenced before a whistle blower is protected. Norris v. Lumbermen's Mut. Casualty Co., 881 F2d 1144 (1st Cir. 1989) (noting that there is a disagreement in the circuits about the statutory construction to be given to "proceeding." See, e.g., Kansas Gas & Electric Co. v. Brock, 780 F2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986)).

XII C 3 Complainant's reason for contacting the government need not be to report a safety concern

In Lassin v. Michigan State University, 93-ERA-31 (ALJ Sept. 29, 1993), the ALJ held that a telephone contact with the NRC was protected activity even though Complainant was only seeking basic information and was not making a formal complaint at the time, where Complainant did convey his concern that a radioactive spill was not being adequately addressed. The ALJ stated that the public policy of facilitating the information to the government is served irrespective of the reporter's specifically defined intent in making the communication.

[Nuclear & Environmental Whistleblower Digest XII C 3]
PROTECTED ACTIVITY; REPORT OF PAINT OVERSPRAY INTO AMBIENT AIR; COMPLAINANT'S MOTIVE FOR MAKING REPORT NOT RELEVANT

In Smith v. Western Sales & Testing, ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004), the Complainant's primary motive for lodging complaints about the Respondent's painting operation was that paint overspray was damaging his vehicle. Nonetheless, the Complainant's complaint included concerns about paint fumes released into the ambient air, which the ARB concluded was an action to carry out the purposes of the CAA. The Board noted that it was well established that a whistleblower's motives need not be concern for the environment; rather, the relevant issue is whether the complainant's belief that the respondent is violating the environmental laws was reasonable. The ARB disagreed with the ALJ that the Complainant was required to establish that the release of pollution was adequate to trigger a violation of the CAA. The ARB also noted that pro se pleading should be construed liberally.

[Nuclear & Environmental Whistleblower Digest XII C 3]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVES

In Hasan v. Sargent & Lundy, 2000 ERA 7 (ALJ Dec. 5, 2002), Employer argued that Complainant raised safety concerns with the expectation that he would be assigned to complete additional review work and thereby extend his employment. Thus, Respondent argued, although Complainant's activity would typically be considered protected activity, it should not in the instant case because Complainant was not a good faith whistleblower. The NRC, however, had validated some of the problems raised by Complainant. Thus, the ALJ concluded that although the record supported questions about Complainant's motives, Complainant had nonetheless engaged in protected activity.

[N/E Digest XII C 3]
PROTECTED ACTIVITY; DISTRIBUTION OF LEAFLET; MOTIVE FOR DISTRIBUTION NOT RELEVANT

Distribution of a leaflet at a company picnic raising, inter alia, environmental safety issues, was found in Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1997), to constitute an internal complaint protected by the FWPCA.

Respondent contended that the distribution of the leaflet should not be considered protected activity because Complainant allegedly was merely making the distribution in an attempt to fabricate a claim for retaliatory discharge already knowing that he was about to be terminated from employment for poor work performance and customer complaints. The Board held, however, that whistleblower protection is not removed merely because a complainant may have other motives for engaging in the protected activity.

[N/E Digest XII C 3]
PROTECTED ACTIVITY; EMPLOYEE'S THREAT TO EXPOSE ALLEGED WRONGDOING

In MacLeod v. Los Alamos National Laboratory, 94-CAA-18 (ARB Apr. 23, 1997)(this was actually an "ERA" case), Complainant failed to assume full responsibility for her actions in regard to a safety-related error, and threatened to hold the chain of command responsible (by asserting that she had not been properly supervised or certified, and that if she was going to be held accountable, then everyone up the line should be held accountable). The Board held that this response to a proposed reprimand had both protected and unprotected aspects -- that the threat to expose alleged wrongdoing was protected. The ALJ, in considering Respondent's explanation for the adverse action, had concluded that Complainant's response was merely a way to avoid responsibility for her mistakes. The Board, however, found that while Complainant may not have exhibited the maturity or responsibility that her supervisor sought in an employee by failing to "take ownership" of the mistake, Complainant was making protected allegations and threats to expose wrongdoing by management.

MOTIVE; COMPLAINT'S MOTIVE; RESPONDENT'S MOTIVE; BLACKMAIL
[N/E Digest XII C 3]

In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995), the Complainant presented a letter to the Respondent's owner complaining about the company (a non-hazardous waste facility) generally and about various alleged environmental violations, including a complaint about the handling of contaminated soil. In concluding the letter, the Complainant made several employment demands, such as a detailed written description of his duties; a posted notice of his duties; and an employment contract essentially doubling his current salary. The Complainant had been hired to set up an on-site laboratory. The owner considered this attempted blackmail, but put it aside, refusing to accede to the employment demands and instead hiring a different person as facility manager. The new facility manager was experienced in hazardous waste treatment facilities.

About one month later, the new facility manager reprimanded the Complainant for a breach of management confidentiality when he told various employees that they could be or would be fired soon. A few days later, the Complainant confronted the facility manager about whether the contaminated soil should be landfilled. At that time the Complainant presented the same letter to the facility manager, stating, inter alia, that he did not believe the manager had the authority or guts to fire him. The manager called the owner, informing him that he could not continue to work under the conditions. Five days later, the owner fired the Complainant.

At the hearing, the Respondent contended that the Complainant was not entitled to protection because he allowed the violations to occur while he was collecting evidence (the Complainant had surreptitiously tape-recorded several conversations), committed violations himself, and essentially was using the law as a tool of extortion. The Secretary noted that where the complainant has a reasonable belief that the respondent is violating the law, other motives he or she may have for engaging in protected activity are irrelevant. Distinguishing several Federal court decisions cited by the Respondent, the Secretary found that there was no quid pro quo, and that the Complainant's employment demands for a job description and more authority were related directly to his allegations that safety violations were occurring. There was no evidence that the Complainant allowed violations to occur or intentionally committed violations himself. Nor was there any evidence that plans leading to termination of the Complainant's employment were under consideration prior to the Complainant's whistleblowing activities.

The Secretary found that the Respondent's purpose for firing the Complainant was to silence the Complainant's persistent and increasingly adamant concerns about the contaminated soil. The Secretary noted that an employer may take action against an employee for improper conduct in raising otherwise protected complaints, but noting that the Respondent did not specify intemperate language or defiant conduct as a reason for the termination, found that the Complainant's conduct was not indefensible under the circumstances. The Secretary indicated that the Respondent's complaints about the Complainant's attitude were not a defense because the attitude resulted from the Complainant's outspoken approach and insistence that the soil was not being handled properly. The Secretary found that the Respondent's owner's consultation with authorities and release of the letter to those authorities of his own volition did not absolve it from wrongdoing in firing the Complainant.

PROTECTED ACTIVITY; THREAT TO GO TO THE PRESS; RELEVANCE OF COMPLAINANT'S MIXED OR SELF-SERVING MOTIVES
[N/E Digest XII B 2 d and XII C 3]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Complainant's threat to go the press with his safety concerns was protected activity. His threat was protected even if he also intended to expose matters other than his protected concerns. The ALJ found that the Complainant misused the ERA by raising safety issues only to intimidate management into increasing his performance rating. The Secretary noted, however, that he has held that where the complainant has a reasonable belief that the respondent is violating the law, other motives he or she may have had for engaging in protected activity are irrelevant.

XII C 3 Protected activity; relevance of complainant's motives

If a complainant had a reasonable belief that the Respondent was in violation of an environmental act, that he or she may have other motives for engaging in protected activity is irrelevant. The Secretary concluded that if a complainant is engaged in protected activity which "also furthers an employee[']s own selfish agenda, so be it." Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995) (some evidence indicated that Complainant's motives were to retaliate because of a wage dispute with a new manager).

XII C 3 Animosity against co-worker as part of complainant's motive

In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), the Secretary indicated that merely because a complainant is motivated in part by a desire to retaliate against a co-worker, the expression of a safety or health concern is not removed from categorization as a protected activity. Specifically, the Secretary stated that animosity toward a co-worker does not foreclose independent concerns about a safety issue, and should not diminish protection. Slip op. at 12-13 and n.12.

XII C 3 Focus need not be on environmental act

Complaints to government officials need not be focused on the subject matter of the environmental act affording whistleblower protection as long as they were brought to the government's attention. Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992) (by implication; Complainant went to OSHA which was primarily concerned with ventilation, sanitation and work hazard, but also told OSHA about improper storage or disposition of chemicals and something wrong with the well water).

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; RESIGNATION TO PROTEST TIMING OF RESTART OF NUCLEAR REACTORS WAS NOT PROTECTED ACTIVITY WHERE IT WAS NOT OBJECTIVELY REASONABLE TO BELIEVE THAT THE RESPONDENT WOULD RESTART THE REACTORS SAFELY, AND WHERE OTHER EMPLOYEES BELIEVED THAT THE RESTART TIMING WAS ONLY A GOAL RATHER THAN AN ORDER TO RESTART

In Hoffman v. NextEra Energy, Inc., ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant’s general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, but the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted that the resignation was protected activity. The ALJ found that the resignation was not protected activity because it was not objectively reasonable for the Complainant to believe that the Respondent would begin the restart process in 12 hours unsafely and in violation of the ERA. The ALJ explained that a restart required many people to implement it, and an unsafe restart was unlikely especially given NRC and Institute of Nuclear Power Operations oversight; other employees present during the restart operations with similar experience to the Complainant’s did not consider the 12 hour directive as an order to restart but only a goal; and the Complainant did not ascertain prior to emailing his resignation whether the situation at the plant continued to justify a work refusal. The ARB found that substantial evidence supported the ALJ’s finding.

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE GOOD FAITH BELIEF THAT CONDUCT WAS IN FURTHERANCE OF ENVIRONMENTAL ACTS DOES NOT REQUIRE A COMMUNICATION TO THE RESPONDENT AS LONG AS COMPLAINANT REASONABLY BELIEVED, AT THE TIME HE VOICED HIS COMPLAINT OR RAISED HIS CONCERNS, THAT A THREAT TO THE ENVIRONMENT OR TO THE PUBLIC EXISTED

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; SUMMARY DECISION; REASONABLE GOOD FAITH BELIEF THAT CONDUCT WAS IN FURTHERANCE OF ENVIRONMENTAL ACTS; MATERIAL ISSUE OF FACT ON BELIEF MAY BE ESTABLISHED IN AFFIDAVIT RESPONDING TO MOTION FOR SUMMARY DECISION

In Williams v. Dallas Independent School District, ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012), the Complainant alleged that his former employer, the Dallas Independent School District (DISD), retaliated against him in violation of the CERCLA and the TSCA. The ALJ granted DISD’s motion for summary decision on the ground that the Complainant had not raised a genuine issue of material fact showing that he had engaged in protected activity under CERCLA and TSCA, because none of the claimed protected activity expressed concern for the environment or the public health and safety. The ARB found that the ALJ had construed the meaning of protected activity too narrowly, and remanded.

Based on a view of the record in the light most favorable to the Complainant as the non-moving party, the ARB found that the Complainant was to be relocated to a position as a Projects Director at a service center on a property that DISD had purchased from Procter & Gamble Manufacturing Company. The Complainant became aware of serious health and safety concerns about the service center, and in light of the imminent transfer initiated efforts to obtain an environmental assessment that DISD had contracted for. The ALJ found that in none of the seven actions identified by the Complainant as his protected activity did the Complainant express any concern that the environment or public health had been impacted or that any of DISD’s activities constituted a potential hazard for the environment external to the service center. The ALJ found that the Complainant’s expressions of concern when requesting the environmental assessment were for his personal safety and health and that of his coworkers, and being "purely occupational in nature" were not protected under CERCLA and the TSCA. The ARB found that this was error:

   The ALJ erred in focusing on whether Williams "expressed concern" at the time about the environment or public health, rather than on whether Williams’s actions, for which he seeks whistleblower protection, "touch[ed] on the concerns for the environment or public health and safety that are the focus of the environmental acts." … "Protection under the environmental acts is extended to a range of activities that further the respective purposes of those statutes." …. "It is a matter of well settled case law that actions that serve the environmental protection purposes of the TSCA . . . and similar environmental statutes may begin with an employee’s personal health concern." ….

USDOL/OALJ Reporter at 9 (citations and footnote omitted). The ARB stated, however, that the Complainant must have had a reasonable good faith belief that his conduct was in furtherance of the purposes of the act under which he seeks protection when he made the complaint. The ARB noted that a complainant "does not need to express his reasonable belief when he engaged in protected activity so long as he reasonably believed, at the time he voiced his complaint or raised his concerns, that a threat to the environment or to the public existed." Id. at 10. The ARB also noted that there is a potential for overlap between the environmental whistleblower acts and the Occupational Safety and Health Act. The ARB stated that "[t]he case law makes clear that while the environmental statutes ‘generally do not protect complaints restricted solely to occupational safety and health [covered by Section 11(c)],’ they do if ‘the complaints also encompass public safety and health or the environment.’" Id. at 11 (citations omitted).

Viewing the allegations of the Complainant’s complaint and evidence of record in the light most favorable to the Complainant, the ARB found that he presented sufficient information to defeat the motion for summary decision as to protected activity. Specifically, the Complainant’s communications to OSHA and repeated requests to DISD for environmental assessments pertaining to the service center clearly touched on the environmental and public health and safety concerns that are CERCLA’s focus. The ARB left it to the ALJ on remand to determine whether there was protected activity under the TSCA.

The ARB noted that a question was raised whether the Complainant subjectively believed that he was raising environmental concerns governed by CERCLA or that DISD’s actions implicated concerns implicated under CERCLA. The ALJ had looked to the Complainant’s deposition to conclude that his only concern was his personal safety and that of his coworkers. The ARB, however, found that the affidavit the Complainant submitted in opposition to the motion for summary decision, bolstered by attached documents, was sufficient to raise a genuine issue of material fact as to whether his concerns went beyond the occupational health and safety concerns raised by Section 11(c) of the OSH Act. The ARB summarized:

   Clearly, Williams, in seeking from DISD the environmental assessment for the Service Center II facility, was seeking information about a potentially serious environmental hazard. Consistent with the environmental statutes and regulations, prior ARB law, and other case law, Williams’s request for information touched on the environmental concerns CERCLA covers. Williams presented evidence that DISD resisted producing the environmental assessments Williams sought, an assertion DISD did not refute. Williams’s pursuit of information about such an environmental concern in this particular case is exactly what CERCLA attempts to ensure is not silenced, regardless of whether the employee pursues the interest solely for himself and his co-workers. The ALJ’s insistence that, to be protected by CERCLA, Williams express concern for protecting non-DISD employees, the public, or the environment, was too narrow in this case. The environmental hazard, about which Williams sought information, appears to be a potentially large and potentially serious public concern notwithstanding its obvious occupational health and safety implications. The fact question nevertheless remains as to whether Williams subjectively believed he was raising environmental concerns. …

USDOL/OALJ Reporter at 13-14 (footnote omitted).

[Nuclear and Environmental Digest XII C 4]
REASONABLE BELIEF THAT RESPONDENT WAS VIOLATING EPA REGULATIONS; COMPLAINANT’S BELIEF FOUND NOT TO BE REASONABLE UNDER THE FACTS OF THE CASE; SPECULATION CANNOT PROVIDE A BASIS FOR A REASONABLE BELIEF

In Knox v. U.S. Dept. of the Interior, ARB No. 07-105, ALJ No. 2001-CAA-3 (ARB Aug. 30, 2007), the Fourth Circuit instructed the ARB on remand to reconsider the record and decide if the Complainant adequately proved that he reasonably believed that the Respondent was violating EPA regulations and thus engaged in CAA-protected activity.  The Complainant had been worried about asbestos at the Harper’s Ferry Job Corps Center.  The ARB found that the Complainant had presented some evidence that could suggest that he believed that the Respondent violated 40 C.F.R. §§ 61.145, 61.150, the regulations that cover reporting, handling, and disposing of asbestos before and during building demolition and renovation.  The ARB found that the only evidence that the Complainant presented that directly pertained to renovation-demolition was his testimony that he was aware that, before he began to work at the Center, construction work had been performed on the roofs of student dormitories. The ARB found, however, that the Complainant did not know whether those roofs contained asbestos, and therefore he could not have reasonably believed that that the Respondent had renovated buildings containing asbestos.  The Complainant also presented the testimony of a maintenance worker at the Center who told the Complainant that he had removed tile and drywall that might have had asbestos.  The ARB, however, found that this testimony did not establish a reasonable belief that the Respondent was renovating building containing asbestos because the maintenance worker had not indicated that he renovated to the extent that he disturbed, sanded, drilled or otherwise damaged areas containing asbestos, which, according to a Survey Report, was what would have made the asbestos hazardous.  Furthermore, the maintenance worker admitted that he did not know the difference between dust and asbestos, and had only told the Complainant that he had removed tile and drywall that "might have had asbestos." In addition, the Respondent’s regional safety director testified that he had talked to the maintenance worker and determined that the location he been working in was not an area having asbestos.

In addition, the ARB received some newly obtained evidence indicating that the Complainant had speculated that students and employees removed and disposed of asbestos floor tiles in the summer of 1998.  The ARB held that speculation could not be the basis for a reasonable belief, and therefore the newly admitted evidence did not demonstrate that the Complainant reasonably believed that the Respondent violated the EPA renovation-demolition regulation.

XII C 4 Coverage under SWDA; test of reasonable belief that substance is hazardous

In Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1994), a Solid Waste Disposal Act (SWDA) whistleblower case, the Complainant alleged that he was fired by the Respondent because he complained to management about dumping of antifreeze and a spill of oil. The Complainant, however, stipulated that neither antifreeze nor motor oil is classified as hazardous waste under the SWDA, and the ALJ recommended dismissal based on lack of jurisdiction.

Establishment of reasonable belief test

The Secretary, however, concluded that where the complainant has a reasonable belief that the substance is hazardous and regulated as such, he or she is protected under the SWDA. The Secretary noted that the applicable law indicates that wastes are considered hazardous if they are listed as such by the EPA, or if they have one four technical characteristics of hazardousness (ignitability, corrosivity, reactivity, and toxicity). See 40 C.F.R. §§ 261.11(a)(1), 251.11(b), 261.20-261.24, 261.30-261.33. Because of the technical complexity of knowing how a particular chemical is categorized, the Secretary concluded that "[i]t is unreasonable to expect the average lay person to know what is or is not on the Act's hazardous waste 'list' [or] whether a particular substance met[s] one of th[e] tests for hazardousness." Slip op. at 6-7.

Limits on reasonable belief test

The Secretary placed several limits on the reasonableness test. First, it is not enough that the employee believe that the environment may be negatively impacted by the employer's conduct; rather, the employee's complaints must be grounded in conditions reasonably perceived to be violations of the environmental acts. Second, there can be jurisdictional limits to employees' complaints -- "the environmental whistleblower provisions are intended to apply to environmental and not other types of concerns." Slip op. at 9, citing Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993) (ERA whistleblower complaint not raised by allegations of race or sex discrimination); Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (remand order)(emissions to outside air covered by CAA whistleblower provision; emissions as an occupational hazard not covered). In the instant case, the Secretary ruled that the Complainant's allegations about oil and anti-freeze fell within the environmental rubric.

Application of reasonable belief test

In applying the reasonable belief test, the Secretary considered whether "under the circumstances it was reasonable, given [the Complainant's] training and experience, for him to believe that used oil and/or antifreeze were hazardous wastes subject to EPA regulation. The Secretary then delved into the "complex regulatory history regarding used oil" and concluded that it was reasonable for the Complainant to belief that a large spill was hazardous and required some notification to an environmental agency. In regard to antifreeze (which the Secretary assumed to contain ethylene glycol), the Secretary noted that there was evidence of record that some people believe that antifreeze is toxic, and that ethylene glycol is regulated under the Clean Air Act and CERCLA. Thus, he concluded that it was reasonable for the Complainant to believe that antifreeze was hazardous and was regulated as such.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; CAA PROTECTED ACTIVITY MUST RELATE TO REASONABLE BELIEF THAT RESPONDENT WAS EMITTING, OR MIGHT EMIT, POLLUTANT INTO THE AMBIENT AIR

In McKoy v. North Fork Services Joint Venture, ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director that he had observed a supervisor and another employee improperly handling asbestos in the basement of the Plum Island Animal Disease Center bio-containment area and that he believed the asbestos could escape into the air. The ARB stated that "[t]o establish that this was CAA-protected activity, [the Complainant] must prove that when he expressed his concerns about the asbestos to [the Senate staffer and the DHS officer], he reasonably believed that [his Employer] was emitting, or might emit, asbestos into the ambient air. 'Ambient air' is 'that portion of the atmosphere, external to buildings, to which the general public has access.'" USDOL/OALJ Reporter at 6 (footnotes omitted). The Board continued:

Employee complaints about purely occupational hazards are not protected under the CAA's employee protection provisions. For example, in the case of asbestos, even though the Environmental Protection Agency has regulated the manner in which it is handled within workplaces to prevent emissions into the outside air, if the complainant is concerned only with airborne asbestos as an occupational hazard within the workplace, and not in the outer, ambient air, the employee protection provisions of the CAA would not be triggered.

Id. at 7 (footnotes omitted). The ARB agreed with the ALJ's finding that the Complainant had first raised the issue of a possible failure in the air handling system at the ALJ hearing, and therefore when the Complainant spoke to the officials he did not have a reasonable belief that asbestos could escape into the ambient air. Thus, the Complainant did not engage in protected activity under the CAA.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; MERE SPECULATION ABOUT POSSIBLE SECURITY BREACHES DOES NOT SUPPORT A FINDING OF REASONABLE BELIEF OF A CAA OR FWPCA VIOLATION

In McKoy v. North Fork Services Joint Venture, ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007), the Complainant contended that he engaged in protected activity when he informed a Senate regional staff member and a Homeland Security Site Director about alleged security lapses in the bio-containment area of the Plum Island Animal Disease Center. The ARB agreed with the ALJ that the Complainant's concerns about security were speculative and did not constitute a reasonable belief that security breaches could enable persons to gain access to hazardous material and therefore harm the environment. Although the Complainant testified that he "could have" stolen materials and in "some way" escaped undetected, he presented no supporting evidence, whereas the record indicated that the Center had elaborate measures in place to prevent the removal of pathogens. The ARB found that the Complainant did not establish protected activity under either the CAA or the FWPCA.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; MERE SPECULATION OF POTENTIAL AIR OR WATER POLLUTION IS NOT PROTECTED ACTIVITY

In Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB granted summary decision against the Complainant where his complaint to the Respondent's managers that three manholes his crew had opened could have accumulated flammable or combustible gases that could have ignited and thereby caused air and water pollution, was not a reasonably perceived environmental violation. Although the ARB was willing, for purposes of deciding the summary decision motion, to accept the Complainant's testimony about the reasonable basis to believe that manholes can accumulate potentially explosive gases or other pollutants, it found no evidence that air or water pollution would result. "[The Complainant's] mere belief, without some supporting evidence, that the air and water could become polluted because of the gas or pollutants in or near the manholes involved is not a reasonable perception that [the Respondent] violated the environmental statutes." Slip op. at 8. Therefore, the Complainant's complaints were not protected activity.

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; POSSIBLE SPILT IN ARB AND FOURTH CIRCUIT INTERPRETATION OF WHETHER COMPLAINANT'S REASONABLE BELIEF OF VIOLATION ALONE IS SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY

In Knox v. United States Dept. of the Interior, ARB No. 06-089, ALJ No. 2001-CAA-3 (ARB Apr. 28, 2006), PDF the matter was on remand to the ARB from the Fourth Circuit. Knox v. United States Dep't of the Interior, 434 F.3d 721 (4th Cir. 2006). The ARB found that that the Fourth Circuit believed that the ARB's protected activity standard under the CAA only required that the Complainant in the case reasonably believed that asbestos was escaping into the outside, ambient air, and that the ARB had misapplied that standard. The Board, however, clarified its standard as requiring whistleblower to take some action on that belief, and indicated that there may be a conflict between the ARB's standard and the standard enunciated by the Fourth Circuit:

    The ARB's protected activity standard for the CAA is . . .that an employee engages in protected activity under the CAA when he or she expresses a concern, and reasonably believes, that the employer has either violated an Environmental Protection Agency (EPA) regulation implementing the CAA or has emitted or might emit, at a risk to the general public, potentially hazardous materials into the ambient air. If the Fourth Circuit's standard for CAA-protected activity, however, requires only that the whistleblower reasonably believe that an employer is violating EPA regulations or is emitting, or is about to emit, potentially hazardous materials into the ambient air, Knox engaged in CAA-protected activity.

USDOL/OALJ Reporter at 5 (footnote omitted). The ARB indicated, however, that regardless of the standard for protected activity, the Complainant still did not prevail in the instant case because he admitted in testimony that he had not expressed a concern to the Respondent's management about asbestos escaping from a Job Corp. facility. Since the Respondent was not aware of the Complainant's protected activity, it could not have retaliated against him because of protected activity.

On appeal again to the Fourth Circuit, the court held:

To the extent that Knox's claim is based on his concern about asbestos escaping into the ambient air from the Center, we hold that the ARB's decision is supported by substantial evidence. As Knox's counsel admitted at oral argument, there is no evidence in the record to establish that Knox specifically reported his concern about asbestos escaping into the ambient air from the Center to DOI officials, and he has not pointed to any evidence that otherwise sufficiently establishes that DOI was aware of Knox's ambient air concern. Thus, although Knox may have engaged in protected activity regarding ambient air emissions under the ARB's previously announced standard because he reasonably believed that asbestos was being emitted from the Center, see Knox, 434 F.3d at 725, DO[I] could not have retaliated against him because of this belief because of his failure to bring it to the attention of DO[I] officials.

Knox v. United States Department of Labor, No. 06-1726, slip op. at 7 (4th Cir. May 23, 2007) (per curiam)(unpublished) (citation omitted). The court, however, remanded on other grounds.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; COMPLAINANT NEED ONLY HAVE HAD A REASONABLE PERCEPTION OF VIOLATIONS RATHER THAN PROVE ACTUAL VIOLATIONS; COMPLAINT BASED ON VAGUE NOTIONS, ASSUMPTIONS AND SPECULATION, HOWEVER, IS INSUFFICIENT

In Erickson v. U.S. Environmental Protection Agency, ARB Nos. 04-024, 04-025, ALJ Nos. 2003-CAA-11 and 19, 2004-CAA-1 (ARB Oct. 31, 2006), PDF | HTM the ARB reviewed the law regarding how correct a Complainant must have been about his or her safety complaint in order to support a 29 C.F.R. Part 24 environmental whistleblower claim:

    An employee who makes a complaint to the employer that is "grounded in conditions constituting reasonably perceived violations" of the environmental acts, engages in protected activity. Similarly, expressing concerns to the employer that constitute reasonably perceived threats to environmental safety is protected activity under the environmental whistleblower protections.

    The employee need not prove that the hazards he or she perceived actually violated the environmental acts. Nor must an employee prove that his assessment of the hazard was correct. And we have also held that an employee need not prove that the condition he or she is concerned about has already resulted in a safety breakdown. On the other hand, a complaint that expresses only a vague notion that the employer’s conduct might negatively affect the environment is not protected. Nor is a complaint that is based on numerous assumptions and speculation.

USDOL/OALJ Reporter at 8 (citations omitted).

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY UNDER THE CAA; COMMUNICATION TO RESPONDENT OF REASONABLE BELIEF OF RELEASE INTO AMBIENT AIR NOT REQUIRED TO ESTABLISH PROTECTED ACTIVITY, ALTHOUGH IT MAY BE RELEVANT TO ISSUE OF CAUSAL RELATIONSHIP BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION

In Knox v. USDOL, No. 04-2486 (4th Cir. Jan. 17, 2006) (case below ARB No. 03-040, ALJ No. 2001-CAA-3), the Fourth Circuit reversed the ARB's finding that, because the CAA is concerned with the pollution of "ambient air," i.e., air external to buildings, and the Complainant only complained of asbestos within his workplace, he did not engage in protected activity under the CAA. The ARB had announced that for the Complainant to establish that he engaged in CAA protected activity he must prove that when he expressed his concerns about the asbestos he reasonably believed that the Respondent was emitting asbestos into the ambient air. In its decision, the ARB pointed to evidence that the Complainant's complaints to management were only about asbestos in the workplace generally, as opposed to the potential for asbestos being emitted into the ambient air, and the Complainant's testimony that he observed asbestos escaping through exhaust fans did not establish that he ever told the Respondent's officials about the exhaust fan.

The Fourth Circuit found that

the ARB altered its protected activity standard from an inquiry into Knox's reasonable beliefs to a requirement that Knox actually conveyed his reasonable beliefs to management. Although the contents of Knox's complaints may provide evidence of his reasonable beliefs, it does not follow that he must have necessarily conveyed a notion to have reasonably believed it, as the ARB demanded of him. Indeed, in the very first sentence of this paragraph, the ARB seemed to accept as true, evidence that Knox did, in fact, reasonably believe that asbestos was emitted into the ambient air. Given the standard that the ARB initially announced, requiring Knox to have reasonably believed that asbestos was being emitted into the ambient air, and the ARB's acceptance that Knox observed asbestos escaping into the ambient air, we conclude that Knox has engaged in a protected activity under the CAA as interpreted by the ARB.

Slip op. at 6 (footnote omitted). The court therefore remanded for further proceedings. The court noted that it was only holding that the ARB's standard for determining whether the Complainant engaged in protected activity did not require the Complainant to convey his reasonable beliefs to management, and that the Respondent's awareness of his complaints may be relevant in regard to causal connection between protected activity and the adverse action.

The court also noted that it was

not convinced that a reasonable belief of a release into the ambient air is even the correct standard in all cases under the whistleblower provision of the CAA. There are several ways to violate the CAA and its implementing regulations without releases into the ambient air. See, e.g., 42 U.S.C. § 7412(h)(1) (allowing EPA to establish work practice standards for pollutants such as asbestos); 40 C.F.R. § 61.150 (setting forth standards for "waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations" involving asbestos, some of which can be violated without releases of asbestos into the ambient air); United States v. Ho, 311 F.3d 589, 594-95 (5th Cir. 2002) (discussing work practice standards involving asbestos). Thus, depending on the circumstances, an employee could reasonably believe his employer was violating the CAA, even if no release into the ambient air occurred.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; ONCE THE RESPONDENT HAS ADDRESSED THE COMPLAINANT'S SAFETY CONCERNS TO THE EXTENT THAT IT IS NO LONGER REASONABLE FOR THE COMPLAINANT TO CONTINUE TO RAISE THE SAME CONCERNS, NEW COMPLAINTS ARE NO LONGER PROTECTED ACTIVITY

In Williams v. USDOL, No. 03-1749 (4th Cir. Nov. 18, 2005) (per curiam) (unpublished) (case below ARB No. 01-021, ALJ No. 2000-CAA-15), the Complainant was a school teacher and the Respondent was a school system. The Complainant became concerned that certain school buildings contained unsafe levels of lead and asbestos, and made complaints to regulatory groups and aired her concerns in public forums. After being discharged for the manner in which she had aired her concerns, the Complainant filed employee protection complaints with the Department of Labor under the SDWA, TSCA, CAA, SWDA, CERCLA and FWPCA. The Fourth Circuit Court of Appeals found that substantial evidence supported the Department of Labor's dismissal of the complaint. The court agreed with the Department that, although the Complainant initially engaged in protected activity in raising concerns about lead in schools, important steps had been taken at each school in response to those concerns to ensure the safety of students and staff. The court wrote that "once her concerns were addressed ... it was no longer reasonable for her to continue claiming that these schools were unsafe and her activities lost their character as protected activity." Slip op. at 15. In addition, the court affirmed the Department's finding that even if the Complainant's actions were protected activity, the Respondent had raised a legitimate, non-retaliatory and nondiscriminatory reason for suspending and later dismissing the Complainant -- that she had obtained unauthorized access to the list of names and addresses of parents. One member of the Fourth Circuit panel dissented.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; EMPLOYEE'S REASONABLE BELIEF OF EXISTENCE OF ENVIRONMENTAL HAZARD

In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ARB rejected the Respondent's assertion that the Complainant's complaints about environmental hazards were not protected activity because they did not specify violations of the federal environmental laws. The Board wrote: "An employee engages in protected activity when he reports actions that he reasonably believes constitute environmental hazards, irrespective of whether it is ultimately determined that the employer's actions violate a particular environmental statute. Oliver v. Hydro-Vac Services, Inc., No. 91-SWD-00001, slip op. at 9 (Sec'y Nov. 1, 1995)." Slip op. at 5.

[Nuclear and Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; AFTER THE RESPONDENT HAS ADDRESSED THE ENVIRONMENTAL CONCERNS RAISED BY THE COMPLAINANT, THE COMPLAINANT'S RAISING THOSE SAME CONCERNS AGAIN MAY NOT BE PROTECTED ACTIVITY

In Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB assumed for purposes of weighing the merits of the Complainant's complaint that an e-mail sent by the Complainant to everyone at the facility at which he was employed was protected activity, even though the ALJ had concluded that it was not, where the Board found it more expeditious to decide the case on other grounds (also, the Complainant had established several other protected activities). The Board, however, noted that at the time he sent the e-mail, the Respondent had already investigated the Complainant's safety and environmental concerns and complaints. Thus, "a viable argument may be raised that [the Complainant's] attachment of [prior e-mails in which he had raised safety concerns] to [the later, post investigation e-mails] was not protected, since [the Complainant] would seemingly no longer have a reasonable, good faith belief that [the Respondent] had not addressed the safety and environmental hazards he raised." USDOL/OALJ Reporter at n.5 (citations omitted).

[Nuclear & Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; REPORT OF PAINT OVERSPRAY INTO AMBIENT AIR; COMPLAINANT'S MOTIVE FOR MAKING REPORT NOT RELEVANT

In Smith v. Western Sales & Testing, ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004), the Complainant's primary motive for lodging complaints about the Respondent's painting operation was that paint overspray was damaging his vehicle. Nonetheless, the Complainant's complaint included concerns about paint fumes released into the ambient air, which the ARB concluded was an action to carry out the purposes of the CAA. The Board noted that it was well established that a whistleblower's motives need not be concern for the environment; rather, the relevant issue is whether the complainant's belief that the respondent is violating the environmental laws was reasonable. The ARB disagreed with the ALJ that the Complainant was required to establish that the release of pollution was adequate to trigger a violation of the CAA. The ARB also noted that pro se pleading should be construed liberally.

[Nuclear & Environmental Whistleblower Digest XII C 4]
PROTECTED ACTIVITY; MAILING AND CIRCULATING LETTERS CONTAINS UNFOUNDED ALLEGATIONS IS NOT PROTECTED

In Williams v. Baltimore City Public Schools System, ARB No. 01 021, ALJ No. 2000 CAA 15 (ARB May 30, 2003), Complainant was a mathematics teacher who alleged that she was suspended and later dismissed for reporting numerous environmental safety and health complaints to both the school system and to government agencies. The ARB affirmed the ALJ's finding that, although Complainant had engaged in many activities that the Acts protect, Complainant was not engaged in protected activity when she mailed a letter to students' parents erroneously stating that water in one of the schools contained lead and circulated similar letters to staff, students, and parents containing unfounded and sensationalized allegations about lead and asbestos hazards at three other schools.

[Nuclear & Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE PERCEPTION; NRC APPROVAL OF FACILITY'S PROCEDURE DOES NOT NECESSARILY RENDER COMPLAINANT'S CONCERNS UNREASONABLE

NRC approval of a security restructuring plan at a nuclear facility does not necessarily render a complainant's raising of security concerns about the plan unreasonable. Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001).

[Nuclear & Environmental Digest XII C 4]
ACTUAL BELIEF AND REASONABLE BELIEF THAT ENVIRONMENTAL STATUTES WERE BEING VIOLATED BY RESPONDENT

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), one member of the ARB ruled that in order for Complainant's activities to be protected under 29 C.F.R. § 24.1(a), Complainant must prove that he actually believed that Respondent was violating environmental laws and that such belief was reasonable in other words, there is both a subjective and objective element to Complainant's belief that Respondent was violating the law.

Respondent contended that Complainant's lack of knowledge of the specific requirements of the TSCA and the CAA precludes protection under those statutes. The member concluded that "[a] requirement that employees independently ascertain the specific requirements of environmental legislation applicable to the facility where they work before discussing compliance issues with their employers would not serve the interest of encouraging 'employees to come forward with complaints of health hazards so that remedial action may be taken.'" Slip op. at 27, quoting Simon v. Simmons Industries, Inc., 1987-TSC-2, slip op. at 4 (Sec'y Apr. 4, 1994).

Respondent also contended that Complainant must prove that his activities were grounded in a sincere desire to inform the public about violations of laws and statutes, as a service to the public as a whole, based on Wolcott v. Champion International Corp., 691 F.Supp. 1052, 1059 (W.D. Mich. 1987). The ARB member rejected this contention, noting that Wolcott was based on interpretation of a state whistleblower statute, and holding that the Secretary of Labor's decision in Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1994), requiring that the whistleblower actually believe that the employer was acting in violation of the environmental statute at issue addressed the concern that whistleblower protection under Part 24 not be extended to knowingly false reports. The member also reviewed the legislative history of the CAA and TSCA, and caselaw under similar whistleblower statutes, and concluded that the Secretary's decisions in Minard and Oliver v. Hydro-Vac Services, Inc., 1991-SWD-1 (Sec'y Nov. 1, 1995), that whistleblower motivation is not relevant were well grounded.

[Nuclear & Environmental Digest XII C 4]
REASONABLE PERCEPTION OF VIOLATION OF UNDERLYING STATUTE

In Stephenson v. NASA, ARB No. 98-025, ALJ No. 1994-TSC-5 (ARB July 18, 2000), the ARB held that

To be protected under the whistleblower provision of an environmental statute such as the CAA, an employee's complaints must be "grounded in conditions constituting reasonably perceived violations of the environmental acts." Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Sec. Dec. and Rem. Ord., Jan. 25, 1994, slip op. at 5; Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2, Sec. Dec. and Ord., Aug. 17, 1993, slip op. at 26, aff'd, 1995 U.S. LEXIS 9164 (9th Cir. Apr. 25, 1995). The complainant must "have a reasonable perception that [the respondent] was violating or about to violate the environmental acts." Id. The issue is one of the reasonableness of the employee's belief."

Slip op. at 15. The ARB observed that "[t]he purpose of the CAA is to protect the public health by preventing pollutants from fouling the ambient air. Employee complaints about purely occupational hazards are not protected under the CAA's employee protection provision. Minard, slip op. at 5-6. See also, Tucker v. Morrison & Knudson, Case No. 94-CER-1, ARB Final Dec. and Ord., Feb. 28, 1997, slip op. at 5 (under environmental acts, complaint about violations that related only to occupational safety and not environmental safety were not protected). ... Thus, the key to coverage of a CAA whistleblower complaint is potential emission of a pollutant into the ambient air." Slip op. at 15 (footnote omitted; emphasis as in original).

Thus, in Stephenson, the ARB considered whether Complainant's complaints were based on a reasonable perception that the use of ethylene oxide to sterilize devices used to measure the blood pressure of astronauts on the Space Shuttle would result in emission of potentially harmful levels of ethylene oxide into the ambient air, and thus constitute protected activity under the CAA (a TSCA complaint had earlier been dismissed because sovereign immunity had not been waived under that Act). The ARB concluded that there was not even a remote possibility of the escape of any significant amount of ethylene oxide or the freon used as a carrier gas during sterilization into the ambient air, and therefore Complainant's activity was not protected by the CAA.

Compare Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000) (one member holds that fugitive emissions or pursuant of information about reports on exposure to emissions may fall within the CAA purpose of protecting air quality).

[Nuclear and Environmental Digest XII C 4]
PRIMA FACIE CASE; OCCUPATIONAL EXPOSURE NOT RELATED TO NUCLEAR SAFETY

In Cox. v. Lockheed Martin Energy Systems, Inc., 1997-ERA-17 (ALJ Feb. 8, 1999), the ALJ found that Complainants failed to establish that they engaged in protected activity under the ERA, where their case was based on allegations that they were the victims of cyanide intoxication related to an occupational exposure. The ALJ found that such exposure was not related to nuclear safety and therefore not protected under the ERA. The ALJ alternatively found that, even if the allegations were determined to fall under the ERA, Complainants' belief that they were harmed by an occupational source of cyanide was unreasonable. The ALJ found overwhelming evidence that there was no occupational source for cyanide exposure, and therefore it was not objectively reasonable for Complainants to perceive that their illnesses were caused by occupational exposure.

[Nuclear & Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE BELIEF OF COMPLAINANT; NOT NECESSARY THAT RESPONDENT PROCEED TO ENGAGE IN ACTIVITY COMPLAINED OF

In Timmons v. Franklin Electric Coop., 1997 -SWD-2 (ARB Dec. 1, 1998), Complainant had verbally objected to the burial of four oil barrels because he believed that the oil was contaminated and the barrels were leaking. The ARB found that Complainant's belief was reasonable, and therefore protected activity. The ARB rejected Respondent's contentions that in order to constitute protected activity, it was necessary for it to have proceeded with the original plan to bury the oil barrels (in fact, after Complainant's objection, the barrels were transferred to a disposal company) or to file a more formal complaint.

[N/E Digest XII C 4]
PROTECTED ACTIVITY; REQUIREMENT OF REASONABLE PERCEPTION OF VIOLATION OF ENVIRONMENTAL LAWS; SUBJECTIVE SPECULATION IS NOT PROTECTED

In Kesterson v. Y-12 Nuclear Weapons Plant, 95-CAA-12 (ARB Apr. 8, 1997), summary decision was appropriate in regard to factual allegations that did not establish protected activity. The Board noted that the employee protection provisions provide protection for making safety and health complaints grounded in conditions constituting reasonably perceived violations of the environmental laws, but not for an employee's mere subjective belief that the environment might be affected. The Board also noted that there is a distinction "between protected acts, such as threatening to file a citizens' suit under the environmental laws, and unprotected acts, such as contacting the government and the news media about mischarging by a government contractor." The Board observed that the Secretary had held that internal complaints about a technical issue which could only threaten the environment if many speculative events all occurred was not protected." 92-CAA-12 @ 3 (citations omitted). Thus, the following matters were not protected activity:

  • Complainant's mere friendship with another employee who is a whistleblower

  • Complainant's truthful answers given in an internal investigation into who ordered the purchase of allegedly illegal surveillance equipment (Complainant's theory was that the allegedly illegal surveillance equipment could be used to spy on whistleblowers)

  • Complainant's objections to allegedly illegal orders to remove computer files from a computer held in evidence in a state criminal case (although such actions may be protected by other laws)

  • Complainant's complaint about abusive treatment by a manager that was not based on the manager's fitness for duty, but the manager's military style of supervision

  • Complainant's refusal to assist in an alleged scheme to fabricate reasons to fire a female employee (although such actions may be protected by other laws).

The Board noted that Complainant's allegation that he was interviewed by Respondent's attorneys investigating another whistleblower's complaint would be protected activity, if proven.

PROTECTED ACTIVITY; UNDERLYING VIOLATION; REASONABLENESS OF COMPLAINANT'S BELIEF
[N/E Digest XII C 4]

The Respondent's status as a non-hazardous waste facility and the Complainant's inability to specify the controlling EPA regulations were not determinative of whether the Complainant engaged in protected activity in Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995). Rather, the question was whether the Complainant's concerns were based on a reasonable belief that the Respondent was violating the SWDA and FWPCA. The Secretary noted that the Complainant believed that certain soil received by the Respondent resulting from the removal of an underground gasoline tank was hazardous to the environment because it contained high levels of benzene. The Secretary concluded that the Complainant's belief that the soil posed a danger and that the Respondent was mishandling it in violation of the SWDA and the FWPCA was reasonable, both legally and factually, noting that Federal case law reveals that confusion exists in delineating hazardous waste, and particularly in regard to contaminated soil from underground storage tanks.

In Oliver, it subsequently was discovered that none of the soil had been landfilled. Nonetheless, the Secretary in reviewing the evidence found that the Complainant's belief that the soil had been landfilled illegally was reasonable. He noted that [f]or purposes of the whistleblower statutes, it does not matter whether the allegation was ultimately factually substantiated. Slip op. at 12 n.4 (citations omitted).

XII C 4 Coverage under SWDA; mistake regarding facts versus mistake regarding the law

In Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1994), the issue arose of whether the SWDA's whistleblower provision extends to situations in which the employee is mistaken regarding the facts but not to situations in which the employee is mistaken regarding the law. In Minard, the Complainant had erroneously believed that antifreeze and used oil were regulated as hazardous waste.

The Secretary concluded that the Complainant's internal complaints to management were similar to those which would fall under the Title VII section 704(a) "opposition clause." Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-3(a). The Complainant was not participating in a SWDA enforcement action, but was opposing his employer's actions.

The ALJ had relied in part on certain Title VII case law indicating that where the employer's alleged action, even if it in fact happened just as the complainant alleged, would not have been a violation of the Act, then the employer cannot be found to have violated the Act's whistleblower protection provision if it retaliates against the complaining employee.

The Secretary, however, chose to follow another line of Title VII authority indicating that "opposition to an employer's actions which are reasonably believed to violation Title VII is protected, irrespective of whether it is ultimately determined that the employer's actions did not violate Title VII either because the employer did not do what was complained about or because the actions the employer took did not violate Title VII." Slip op. at 20-22, citing Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980); Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981). The Secretary concluded that the same approach under the SWDA's whistleblower provision should be followed.

In sum, the Secretary held that "under the SWDA whistleblower provision an employee's reasonable belief that his employer is violating the Act may--depending on the particular facts of the case--be sufficient basis for a retaliation claim if the employer allegedly takes action against that employee because he [or she] expressed his [or her] belief, irrespective of after-the-fact determinations regarding the correctness of the employee's belief."

XII C 4 Reasonable perception of violation

When a Complainant alleges a violation, it does not matter whether the allegation is ultimately substantiated; rather, it only needs to be "grounded in conditions constituting reasonably perceived violations of the environmental acts." Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1995), slip op. at 8.

Where the Complainant was an operator at a water treatment plant, and one of his duties was to treat the water so it could be released in accordance with state regulations, and records were kept by the operators to show compliance with the regulations, the Complainant's allegation of record falsification was sufficient to show a reasonably perceived violation of the Act.

Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995).

XII C 4 Reasonable perception standard

To establish protected activity, the employee need demonstrate only a reasonably perceived violation of the underlying statute or its regulations. Where Respondent was a power company, and Complainant testified that he informed several managers and executives that he believed there were statistical problems with studies that the power company would submit to the state, since the studies related to power plants for which the power plant had NPDES permits issued under the WPCA, Complainant's concern about a potential violation of the statute was reasonable. Abu- Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).

XII.C.4. Reasonable perception

In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994), the Complainant, a process engineer, engaged in protected activity by

  • raising protected internal concerns about whether Respondent needed to obtain permits for its surface impoundments and waste ponds and was suggesting further consultation, testing, and core sampling.

  • Concerns regarding statutory reporting compliance

  • Raising internally the issue of whether Respondent had dumped hazardous materials improperly and whether the dumping and associated findings should be reported.

The Secretary noted that the last issues were grounded in conditions constituting reasonably perceived violations of the environmental acts and are protected.

Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993), slip op. at 11-12; Johnson v. Old Dominion Security, 86-CAA-3/4/5 (Sec'y May 29, 1991), slip op. at 15.

Even though Respondent disagreed with the test results and with Complainant's theory of why the ponds tested flammable, Respondent does not show that Complainant's position was unreasonable.

In addition, Complainant's pressing the issue was protected conduct, even though he may have been tentative and uncertain about the law.

See Passaic Valley Sewerage Comm'rs v. United States Dept. of Labor, 992 F.2d 474, 479-80 (3d Cir. 1993)(all good faith intracorporate allegations of perceived discrepancies are fully protected); see also Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) (protection of internal complaints under the analogous Surface Transportation Assistance Act is not dependent on actually proving a violation).

XII.C.4. Reasonably perceived violations

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Complainant testified that in the past, he made reports and complaints to various government agencies concerning a pesticide dump, and explosive devices (land mines or practice land mines) located in a public access area of the Respondent's nuclear reservation.

The Secretary found that a pesticide dump would appear to come within the SWDA definition of "solid waste," which includes "discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural activities," with certain exclusions. 42 U.S.C. § 6903(27) (1988); see also 40 C.F.R. § 255.1. The Secretary also concluded that ordnance also could be covered, if it resulted from commercial activities and if it were discarded.

The Secretary also noted that a complainant under an employee protection provision need not prove an actual violation of the underlying statute. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Rather, an employee's complaint must be "grounded in conditions constituting reasonably perceived violations" of the environmental acts. Johnson v. Old Dominion Security, 86- CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 15.

Construing the SWDA broadly in this case, the Secretary found that the complaint was grounded in conditions constituting reasonably perceived violations of the SWDA and that the Complainant stated a valid complaint under the SWDA.

XII.C.4. CAA; Absence of allegation of deterioration of air quality

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Complainant testified that in the past, he made reports and complaints to various government agencies concerning a pesticide dump, and explosive devices (land mines or practice land mines) located in a public access area of the Respondent's nuclear reservation. The Secretary found that such complaints or reports, do not appear to come within the sphere of activities protected under the Clean Air Act, since there was no allegation or evidence that the ordnance or the pesticides might cause a deterioration in air quality.

XII C 4 Reasonable perception standard

Most courts recognize internal complaints to managers as protected activity under the environmental protection provisions. [citations omitted] Further, internal quality complaints may be so protected, and Complainant need not prove an actual violation of law occurred. Nonetheless, it is not enough that the employee believe that the environment may be negatively impacted by the employer conduct; rather an employee's complaints must be "grounded in conditions constituting reasonably perceived violations" of the environmental acts. Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991). See also Aurich v. Consolidated Edison Co., 86-ERA-2 (Sec'y Apr. 23, 1987) (remand order).

The Secretary's decisions finding protected activity often illustrate an experiential basis for the employee's belief that an employer is violating an environmental act. For example, in both the Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) and Guttman v. Passaic Valley Sewerage Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992), aff'd, Passaic Valley Sewerage Comm'rs v. United States Dept. of Labor, 992 F.2d 474 (3d Cir. 1993) cases, the employee's protected activities consisted of complaints that certain systems already in use violated environmental statutes.

  • As a condition of federal funding, the WPCA requires a fair allocation of user fees to assure that each recipient of waste treatment services pays its proportionate share of the costs of operation of a waste treatment plant. Based on experience with the sampling technique his employer used to calculate user charges, Guttman complained that the system did not comport with the WPCA's explicit fairness requirement.

  • In Dysert, the internal complaint of an engineer engaged in testing certain instruments installed at a nuclear power plant constituted protected activity under the ERA.

  • See also Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (ERA protects employee's questioning of foreman about safety procedures being used to examine tools), appeal dismissed, No. 92-5176 (11th Cir. Apr. 15, 1993).

In the instant case, however, Complainant did not base his fear of a potential "bug" in a planned computer program on either an existing computer program or on its use in any specific device (a gas detector); rather, Complainant questioned quality before anyone had begun to create the program. The Secretary found that Complainant's assumptions about the probability of a bug and the after effects of that assumed bug to be too numerous and too speculative for him reasonably to have perceived that Respondent was about to violate one of the environmental acts. Hence, Complainant's quality complaints were not protected under the CAA, TSCA or CERCLA.

Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993).

XII C 4 Report of perceived wrongful conduct

In Abu-Hjeli v. Potomac Electric Power Co., 89-WPC- 1, (Sec'y Sept. 24, 1993), Complainant discovered flaws in data and statistical analyses in three studies prepared by Respondent for possible use in support of obtaining a license for a future generating station and to contradict the State's conclusion that the cooling structure at one plant caused unacceptable environmental impact in receiving waters. These studies were voluntarily prepared by Respondent and upon hearing Complainant's concerns, Respondent took measures to correct flaws.

The Secretary disagreed with the ALJ's finding that the Complainant's action of reporting flaws in the study may not be protected activity under the Act and determined that to establish protected activity, a complainant must demonstrate only that a reasonably perceived violation of the underlying statute or its regulations is necessary.

XII C 4 Reasonable perception of violation as protected activity

To be covered under the employee protection provision, a complaint need only be grounded in conditions constituting a reasonably perceived violation of the underlying act. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992); Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29, 1991), slip op. at 15; Aurich v. Consolidated Edison Co., 86-ERA-2 (Sec'y Apr. 23, 1987), slip op. at 4. Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992) (ALJ had misstated that there had been an admission by the owner of an oil field of a violation of the FWPCA because there was no evidence of such an admission in the record; misstatement, however, was not material).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

XII C 4 Possible violations

In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3 (ALJ Nov. 29, 1993) (order denying respondent's motion for summary decision), Respondent asserted in a motion for summary decision that "[i]n order for CERCLA to apply to the alleged salt release on [the day Complainant allegedly engaged in protected activity], there must have been a release of hazardous substances in a reportable quantity, CERCLA § 103(a), 42 U.S.C. § 9603(a)"; that the E.P.A. found that "any salts which were released from the stack contained a total equivalent value for dioxin of 247 parts per trillion (ppt), with metals in the low parts per billion range"; that CERCLA requires the report of releases of one pound of dioxin or greater; and that since Respondent's calculations show that this amount was not released, CERCLA does not apply.

The ALJ noted that

The Secretary of Labor and the Federal courts considering this issue have found that complaints regarding "possible violations," Kansas Gas & Elec. Co., 780 F.2d 1505, 1512 (10th Cir. 1985) cert. denied, 478 U.S. 1011, 106 S. Ct. 3311 (1986), as well as "quality problems," Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir. 1984), are considered protected activity. Therefore, the fact that an employee may be mistaken as to whether an employer's actions were actual violations is not dispositive of the issue of whether the employee engaged in protected activity. In addition, the issue does not turn on whether the employee is actually successful in proving a violation. Rather, the primary consideration is whether the complaint was based upon possible violations. See Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Accord Richard Adams, No. 89-ERA-3 (Sec'y Aug. 5, 1992).

The ALJ reviewed the circumstances and found that it was reasonable for Complainant to have believed that a violation was taking place.

XII C 4 Validity of underlying complaints

In Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec'y Mar. 13, 1992), the Complainant was employed by the Respondent, a water treatment facility, as as the head of a laboratory that analyzed water samples pursuant to an ad valorem user charge system in which the users of the facility took their own water samples. Over a period of years, the Complainant reported extensively to PVSC officials that the user charge system violated the FWCPA. The Complainant was subsequently terminated from his employment with PVSC.

The Secretary held that the Complainant's criticism of the user charge system to his supervisors rather than an outside agency was protected activity even under Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). PVSC is a public agency in the State of New Jersey whose commissioners are appointed by the governor and confirmed by the state senate. The record shows that Complainant reported violations not only to his immediate superiors, but also, directly and indirectly to the full commission, which having some responsibility under the FWCPA could be viewed as a "competent organ of government" within the meaning of Brown & Root, 747 F.2d at 1036.

Affirmed by the Court of Appeals for the Third Circuit. 992 F.2d 474 (3rd Cir. 1993).

XII C 5 Complainant need not disclose unique information

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. Both employee and TVA sought review of the Secretary's decision. The court stated that, "[t]he purpose of the Act is to prevent employers from discouraging cooperation with NRC investigators, and not merely to prevent employers from inhibiting disclosures of particular facts or types of information." Thus, the court held that employee did not need to show that he disclosed unique evidence to the NRC, or evidence that TVA attempted to hide, in order to make out his case. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983). Also, the court held that employee did not need to prove that he was treated differently from other similarly situated participants in the NRC investigation. Id.

PROTECTED ACTIVITY; UNDER ERA, NEED NOT HAVE DIRECT EFFECT ON NUCLEAR SAFETY; COMPLAINANT NEED NOT DETERMINE WHETHER HAZARD HAD ALREADY BEEN DISCOVERED BY RESPONDENT OR REPORTED TO NRC
[N/E Digest XII C 5]

From McCafferty v. Centerior Energy, 96-ERA-6 (ARB Oct. 16, 1996):

It is not necessary, in order for an employee's action to be considered protected under the ERA whistleblower provision, for that action to have a direct effect upon nuclear safety. Thus, for example, it matters not that an employee complains about a hazard that has already been corrected, or complains to the NRC about a condition that the employer is already aware of. The complaint may still be considered protected activity. If, in order to come within the protection of the ERA's whistleblower provision, an employee had to determine whether the condition he or she wanted to report had already been discovered by the employer, or was already being addressed by the NRC, employees would be discouraged from bring potentially significant complaints to the attention of authorities. If [Respondent's] theory were correct, an employer who had created a nuclear hazard and had been cited for it by the NRC, could retaliate with impunity against an employee who belatedly reported that violation to the NRC. The language of Section 211 does not require such a far-fetched result. ...[7]

______

[7] That is not to say that an employer's actions to correct a hazard are not relevant in a retaliation case. The fact that a hazard has already been addressed by an employer before an employee complains about it might be highly relevant to the issue of the employee's motive to retaliate.

PROTECTED ACTIVITY; COMPLAINANT NEED NOT BE A SUBSTANTIAL SOURCE OF INFORMATION
[N/E Digest XII C 5]

In Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996), Complainant and other employees were emptying an aqueous waste tank when a drum of waste material fell and a portion of its contents were spilled. A shift engineer who investigated the incident talked to employees involved, including Complainant. Complainant testified:

. . . It was getting close toward the end of the day and Mr. Winchester came up to me and he said, "Dave, what are you talking about?" I said, "What do you mean? What are you talking about?" He said, "That spill." I Said, "You mean the one Friday?" And he says, "Was it a bucket, a gallon, or how much was it? How big of a spill was it?" I said, "Mr. Winchester, I can't tell you. There's a gag order and I can't speak to you. I'll have to refer you to my supervisors and management because my job is on the line." And he understood.

Slip op. at 3, quoting transcript of hearing. The ALJ held that Complainant was not a party to the investigation of the incident and therefore could not have engaged in protected activity. The Board, although agreeing that Complainant "did not provide substantial information concerning the incident, [concluded that] his statement to Winchester confirming that a spill had occurred was a clear indication that further investigation of the incident was necessary, and thus was protected.

PROTECTED ACTIVITY; RELEVANCE OF OTHER WORKERS HAVING RAISED SIMILAR CONCERNS
[N/E Digest XII C 5]

In Diaz-Robainas v. Florida Power & Light Co., 1992-ERA-10 (Sec'y Jan. 10, 1996), the Secretary noted that the fact that other workers raised similar internal safety concerns during the course of performing their jobs does not render the Complainant's concerns unprotected.

XII C 5 PROTECTED ACTIVITY; SIMILAR CONCERNS RAISED BY OTHER WORKERS IN PERFORMANCE OF JOB

The fact that many other workers raised similar internal safety concerns in the course of performing their jobs, although relevant to causation issues, does not render a complainant's concerns unprotected. Gibson v. Arizona Public Service Co., 1990-ERA-29, 46 and 53 (Sec'y Sept. 18, 1995), citing Jopson v. Omega Nuclear Diagnostics, 1993-ERA-54 (Sec'y Aug. 21, 1995).

XII C 6 Manner of complaint; use of intemperate language

When a complainant uses intemperate language or engages in impulsive behavior associated with the exercise of whistleblower rights, there should be a balancing between the right of the employer to maintain shop discipline and the "heavily protected" rights of employees -- to fall outside statutory protection, an employee's conduct actually must be indefensible under the circumstances. While employees are protected when presenting safety related complaints, they do not have carte blanche to choose the time, place and/or method of making those complaints. An otherwise protected employee is not automatically absolved from abusing his or her status and overstepping the defensible bounds of conduct, even when provoked. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995) (finding that Complainant's behavior may have caused some workplace disruption, but was not indefensible under the circumstances).

[Nuclear and Environmental Whistleblower Digest XII C 6

PROTECTED ACTIVITY; MANNER OF RAISING; DELIBERATE AND REASONED SARCASM AND SATIRE IS NOT THE TYPE OF CONDUCT PROTECTED BY THE "LEEWAY FOR IMPLUSIVE BEHAVIOR" PRINCIPLE

See Sayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 2000-CAA-7 (ARB May 31, 2005), supra at Digest IX B 2 b viii.

PROTECTED ACTIVITY; MANNER OF EXPRESSION
[N/E Digest XII C 6]

In Talbert v. Washington Public Power Supply System, 93-ERA-35 (ARB Sept. 27, 1996), Complainant's manner of raising a safety concern was not so disruptive as to be indefensible under the circumstances, and therefore did not lose protection under the ERA even though Respondent felt that Complainant should have raised the concern through a "Problem Evaluation Report" or by bringing it to management's attention "at an opportune time, quietly and privately." Complainant had raised a germane concern during a "question and answer" period. Complainant's raising of the concern, however, was problematic for Respondent because it contradicted the message Respondent was trying to convey. The NRC has expressed concern that engineers improperly felt that emergency operating procedures (EOP) were merely guidelines, and Complainant's question was premised on a certain EOP being, in his view, unsafe. The timing was "poor" in Respondent's view because the "message" during the meeting had been strict compliance with the procedures. The Board, however, found that there was nothing objectively disruptive about Complainant's question under the circumstances.

XII C 6 Manner of complaint; intemperate language and impulsive behavior

When considering the effect of an employee's intemperate language and impulsive behavior associated with the exercise of whistleblower rights, the right of the employer to maintain discipline in the workplace must be balanced against the statutorily protected rights of the employee. To fall outside statutory protection, an employee's conduct actually must be indefensible under the circumstances. Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995) (Complainant's behavior not indefensible where his actions may have disrupted a demonstration and an inspection briefly, but the Complainant did not persist, and the events continued).

[Nuclear and Environmental Whistleblower Digest XII C 7]
PROTECTED ACTIVITY; THREAT TO REPORT VIOLATIONS MUST BE BASED ON REASONABLY PERCEIVED VIOLATION TO BE PROTECTED ACTIVITY

Threatening to report violations of the environmental acts to federal agencies can constitute protected activity; however, such a threat must be based on a reasonable perception that the employer has violated, or is about to violate, the environmental statutes. "To hold otherwise would be to encourage whistleblower litigation that would not serve the legislative goal of protecting the environment." Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), slip op. at 10.

XII C 7 About to contact authorities

In Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995), the Complainant was protected in that he was about to contact the authorities about his concerns. 42 U.S.C. § 6971(a); 33 U.S.C. § 1367(a).

[Nuclear and Environmental Whistleblower Digest XII C 8]
PROTECTED ACTIVITY; A COMPLAINANT'S CONDUCT CAN BE PROTECTED PROVIDED THAT THE COMPLAINANT HAD A REASONABLE BELIEF THAT THERE WOULD BE A VIOLATION OF THE SWDA OR OTHER PERTINENT LAWS, AND THAT THE CONDUCT WAS TAKEN PURSUANT TO THE COMPLAINANT'S EMPLOYMENT AUTHORITY OR WAS OTHERWISE WITHIN THE RIGHTS AFFORDED EMPLOYEES UNDER THE SWDA

In Lee v. Parker-Hannifin Corp., Advanced Products Business Unit, ARB No. 10-021, ALJ No. 2009-SWD-3 (ARB Feb. 29, 2012), the Complainant was an Environmental Health and Safety Coordinator at the Respondent's Advanced Products Business Unit. In response to a concern raised by the state environmental protection agency, the Complainant raised concerns with the highest ranking official at the facility that the Respondent's hazardous waste treatment from one evaporator was possibly non-compliant with federal and state regulations. Management informed the Complainant that it would schedule a meeting in about three weeks to discuss the matter. Two days later, the Complainant informed the official that he was "ordering" that the evaporator be shut down. Later that day the official informed the Complainant that he did not have the authority to shut down the evaporator, instructed him not to do so, and informed him that the company would investigate his concerns. Several days later, the Complainant shut down the evaporator and placed a padlock on it. That same day the Respondent began an investigation. The investigation found the Complainant's allegations to be without merit. The Complainant was then terminated because he shut down the evaporator.

The ALJ granted summary decision dismissing the Complainant's SWDA whistleblower complaint. The ALJ concluded that the undisputed facts established that the Complainant was not engaged in protected activity when he shut down the evaporator. On appeal, the ARB vacated the grant of summary decision and remanded for further proceedings. The ARB described in detail its holding that conduct can be afforded whistleblower protection provided that the complainant can demonstrate that he had a reasonable (objective and subjective) belief that there would be a violation of the SWDA and/or pertinent environmental laws, and that his conduct was either taken pursuant to his employment authority or otherwise was within the rights afforded employees under the SWDA.

The ARB looked to the language of the SWDA and relevant caselaw to find that protected activity is interpreted expansively under the SWDA. The ARB noted that it had previously found that conduct can constitute protected activity under the SWDA and other whistleblower laws. Such conduct has been found to include airline pilots who refuse to certify a plane as airworthy, taking photographs, making secret tape recordings, performance of quality control and quality assurance functions, and refusal to work.

The ARB noted that under the SWDA, the concern is external to the employee and focuses on environmental purposes. Thus, to secure the protection of the SWDA, actions of an employee whether in the form of a complaint, participation in an investigation, or conduct, must be reasonably be perceived by the employee as furthering the SWDA's purposes.

The ARB found that the ALJ's reliance on several decisions was misplaced. Harrison v. A.R.B., 390 F.3d 752 (2d Cir. 2004), an STAA case, did not stand for the proposition that there is a distinction between safety complaints and conduct. Rather, the decision holds that the STAA may not necessarily protect an employee who engages in unauthorized conduct. Consolidated Coal v. Marshall, 663 F.2d 1211 (3d Cir. 1981), a FMSHA case, did not stand for the proposition that conduct is never protected. Rather, conduct is protected only if it is within the rights of the complainant to take, provided that the complainant "has a reasonable good faith belief that his conduct is in furtherance of the purposes of the act under which he seeks protection. " Lee, ARB No. 10-021, USDOL/OALJ Reporter at 11. The ARB acknowledged that in Sievers v. Alaska Air, ARB No. 05-109, ALJ No. 2004-AIR-028 (ARB Jan. 30, 2008), it was held that AIR21-protected activity requires more than aggressively carrying out one's duties for ensuring air safety. Rather, the complainant must communicate his or her concerns to management. Nonetheless, the ARB found that the conduct in Sievers for which AIR21 whistleblower protection was afforded – a pilot's decision, acting within the scope of his authority, to place an airplane out of service because of safety concerns – is functionally no different from the Complainant's conduct at issue in the present case.

The ARB summarized:

   While an employee's authority (or lack thereof) is not necessarily determinative of whether particular speech or conduct is protected –– it is a factor in assessing the objective reasonableness of an employee's belief that his conduct is in furtherance of the purposes of the whistleblower act under which he seeks protection. An employee may exceed his authority and thereby take his conduct outside of the protection afforded by the statute. "That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints." Garn v. Benchmark Techs., No. 1988-ERA-021, slip op. at 4 (Sec'y May 18, 1995). On the other hand, an unauthorized act may, under certain circumstances, be protected under the whistleblower statutes. The Secretary has concluded that the operative determination of whether intemperate or insubordinate (unauthorized) behavior may be eligible for protection requires a balancing of interests: "[t]he right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts." Kenneway v. Matlack, Inc., No. 1988-STA-020, slip op. at 3 (Sec'y June 15, 1989). Determining whether conduct is protected can thus turn on the objective reasonableness of an employee's belief of a violation, which can be affected by the extent of his/her professional authority to even make such a decision. Even unauthorized conduct may be protected as long as it is lawful and "the character of the conduct is not indefensible in its context." Id.

   This balancing of interests to determine whether an employee's unauthorized actions are defensible is, in our view, simply another way of arriving at a determination of the objective reasonableness of an employee's belief that his actions were protected. These analyses turn on the distinctive facts of each case.

Lee, ARB No. 10-021, USDOL/OALJ Reporter at 11-12 (emphasis as in original) (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XII C 9]
PROTECTED ACTIVITY; RESIGNATION TO PROTEST TIMING OF RESTART OF NUCLEAR REACTORS LOST PROTECTION UNDER THE ERA WHISTLEBLOWER PROVISION WHERE COMPLAINANT DENIED RESPONDENT OPPORTUNITY TO SHOW THAT CONDITIONS WERE ACTUALLY SAFE

In Hoffman v. NextEra Energy, Inc., ARB No. 12-062, ALJ No. 2010-ERA-11 (ARB Dec. 17, 2013), the Complainant was the assistant operations manager at a nuclear power plant. Following an automatic shutdown of two reactors due to an under-voltage disruption in the electrical grid outside the plant, the plant’s general manager set a goal of restarting the reactors within 12 hours. The Complainant told the site vice president that 12 hours would not be sufficient, but the vice president replied that 12 hours would be the target. At a shift change, the Complainant went home. He told several people that he was considering quitting because of being bypassed and ignored, and because he thought a restart in 12 hours would be unsafe. The Complainant emailed a resignation prior to the start of the night shift. After the Complainant had gone home but prior to the email resignation, however, the Respondent had changed the restart goal to 24 hours. The Complainant asserted before the ALJ that the resignation was protected activity. The ALJ found that the found that the resignation was not protected activity because it was not objectively reasonable, a finding affirmed by the ARB. In addition, the ALJ found that even if the resignation was objectively reasonable, it lost protection because the Complainant "denied his employer the opportunity to provide an explanation and show that conditions were safe when he refused to talk to them to allow them to address his concerns and offer a satisfactory response." USDOL/OALJ Reporter at 9. The ARB found that substantial evidence supporting the ALJ’s alternative finding, stating that if the Complainant "had inquired as to whether FPL was going to actually restart in 12 hours, he would have learned that they were not going to do so." USDOL/OALJ Reporter at 9.

[Nuclear and Environmental Digest XII D 1 a]
NO PROTECTED ACTIVITY; OCCUPATIONAL SAFETY AND HEALTH COMPLAINTS ARE NOT GENERALLY PROTECTED ACTIVITIES UNDER THE NUCLEAR, ENVIRONMENTAL, AND PIPELINE SAFETY STATUTES ABSENT SOME ADDITIONAL PUBLIC SAFETY, HEALTH, OR ENVIRONMENTAL IMPACT

In Carpenter v. Solis, No. 09–4394, 439 Fed.Appx. 480 (6th Cir. 2011), the plaintiff was a rig operator at Bishop Well Services, and after the plaintiff suffered an on-the-job injury and filed a workers' compensation claim, the employer placed him on light duty, "which allowed him to sit in a truck observing the work while receiving full pay." The plaintiff requested additional work restrictions at subsequent workers' compensation hearings, which the employer contested, and were eventually denied. According to the employer, it decided in March 2006 to terminate the plaintiff's light duty position, but decided to wait until the plaintiff's "nonwork-related restrictions" expired at the end of May 2006. After the employer's biggest client complained about the plaintiff remaining on the payroll despite not "doing any actual work," the employer terminated the plaintiff on May 31, 2006, explaining that it could no longer accommodate his "light duty" restrictions.

While on light duty, the plaintiff notified his employer that he had observed mechanical problems on a service rig, and also reported these problems to OSHA. A subsequent OSHA inspection resulted in the issuance of two citations to the employer, but the citations addressed violations that were unrelated to the problems identified in the plaintiff's complaints.

The plaintiff filed a whistleblower complaint with OSHA under the Clean Air Act (CAA), the Safe Drinking Water Act (SDWA), the Energy Reorganization Act (ERA), the Toxic Substances Control Act (TSCA), Comprehensive Environmental Resources, Compensation, and Liability Act (CERCLA), and the Pipeline Safety Improvement Act (PSIA). After OSHA dismissed his complaint, the ALJ likewise dismissed his complaint for failure to engage in protected activity. On appeal to the ARB, the plaintiff argued that he did not receive a fair trial because of several of the ALJ's procedural and evidentiary rulings, but the ARB rejected those arguments and affirmed the dismissal of his claim.

The plaintiff then petitioned the Court of Appeals for the Sixth Circuit, arguing that the ALJ's procedural and evidentiary rulings denied him due process of law. Specifically, he pointed to the ALJ's decisions to deny his motion to compel discovery responses, deny his motion to continue the hearing, refuse to compel the employer to produce a specific manager at the hearing, and permit the employer to call an expert in Ohio workers' compensation law to testify at the hearing.

The Court of Appeals explained that even assuming the ALJ's denial of the plaintiff's motion to compel discovery requests was an abuse of discretion, the decision caused no prejudice because the plaintiff failed to show any of the discovery requests would cure the crucial defect in his complaint – his failure to allege that he engaged in protected activity. The plaintiff's sole alleged protected activity in this case – calling OSHA to report mechanical problems – is clearly protected by the Occupational Safety and Health Act, but the whistleblower provisions invoked in the plaintiff's complaint "generally do not protect complaints restricted solely to occupational safety and health, unless the complaints also encompass public safety and health or the environment." Accordingly, the Court of Appeals not need determine whether the ALJ erred in denying his motion to compel discovery requests because the plaintiff offered no reason to believe those requests would reveal that he engaged in protected activity under any of the statutes invoked by his complaint.

The Court of Appeals also rejected the plaintiff's arguments regarding his motion to continue the hearing, finding the ALJ's denial of the motion proper because the plaintiff brought the motion less than seven days before the hearing. Moreover, the denial did not prejudice the plaintiff because the ALJ worked with the plaintiff to allow him to present his testimony out of order to accommodate the plaintiff's schedule, and also provided the plaintiff with sixty days after the hearing to take additional depositions as needed.

The plaintiff also failed to show that he was prejudiced by the ALJ's decision to permit the employer to call an Ohio workers' compensation law expert to testify at the hearing, who the employer decided to call to testify after the ALJ expressed confusion regarding Ohio's workers' compensation system at the first day of the hearing. Even though the employer failed to disclose her as an expert during the discovery process, the Court of Appeals explained that the plaintiff was given the opportunity to cross-examine the expert, and to dispose his own expert to rebut the testimony within sixty days of the hearing.

The plaintiff's final argument regarding the ALJ's refusal to compel the employer to produce a manager at the hearing was likewise denied, as the court found the plaintiff had previously waived his right to compel the witness.

[Nuclear and Environmental Digest XII D 1 a]
PROTECTED ACTIVITY; ARB SUGGESTS MERELY RAISING A COMPLAINT RELATED TO WATER PRESSURE (AND THEREFORE PUBLIC SAFETY) IS NOT SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY UNDER THE SDWA

In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Complainant was a project manager for a utilities company. The ALJ found that the Complainant had raised concerns with management about the capacity of a projected well to support the water needs of the community, including the maintenance of sufficient water pressure to put out fires. Although acknowledging that the SDWA is not specifically concerned with the subject matter of the well capacity and water pressure, the ALJ found that the Complainant had engaged in protected activity under the SDWA because his complaints related to public safety, "which is a main concern of the environmental whistleblower statutes generally." On review, the ARB stated that it would not review this finding because the Respondent had not challenged it. Nonetheless, the ARB noted that the complaint as described in the ALJ's decision did not implicate the coverage of the SDWA's enumerated protected activities (an SWDA whistleblower proceeding or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State proceeding.) Thus, the ARB observed that the ALJ's finding of protected activity was "highly questionable."

[Nuclear & Environmental Digest XII D 1 a]
PROTECTED ACTIVITY; COMPLAINT ABOUT POOR PHYSICAL CONDITIONING OF SECURITY GUARDS AT NUCLEAR FACILITY; ENVIRONMENTAL AND NUCLEAR WHISTLEBLOWER COMPLAINTS

In High v. Lockheed Martin Energy Systems, Inc., ARB No. 98-075, ALJ No. 1996-CAA-8 (ARB Mar. 13, 2001), Complainant, a Physical Training Coordinator, complained to his employer about the failure of some security guards at the Oak Ridge Operations Office fully to participate in the exercise program required by DOE regulations. In dismissing the complaint under Fed. R. Civ. P. 12(b)(6) -- failure to state a claim upon which relief can be granted -- as to the environmental whistleblower provisions, the ARB wrote:

    Neither the environmental acts nor their implementing regulations have any provisions that govern the physical conditioning of security guards; thus on its face, High's complaint under the environmental acts does not point to a specific statutory or regulatory provision allegedly violated by any of the respondents. High attempts to bootstrap his complaint into a protected activity by asserting that (1) unfit guards will be unable to deter the theft of nuclear material; (2) this nuclear material could find its way into a nuclear bomb; (3) the nuclear bomb may be detonated in this country; and (4) the resulting explosion would be harmful to the environment. .... Because High has offered nothing other than speculation, which we have found insufficient as a matter of law to constitute protected activity, his concerns are not protected under the environmental acts.

The ARB, however, found that the complaint could survive a Fed. R. Civ. P. 12(b)(6) motion under the ERA whistleblower provision, because the physical fitness program at DOE's Oak Ridge facility is mandated by DOE regulation, and the ERA whistleblower provision expressly protects employee concerns about the Atomic Energy Act or regulations promulgated thereunder. Thus, the ARB found that Complainant's allegations might constitute protected activity under the ERA - a close call, but sufficient to survive the very charitable standard applicable to 12(b)(6) motions.

[Nuclear and Environmental Whistleblower Digest XII D 1 a]
PROTECTED ACTIVITY; ENVIRONMENTAL COMPLAINTS MUST ENCOMPASS PUBLIC SAFETY AND HEALTH OR THE ENVIRONMENT; ERA COMPLAINTS ABOUT EXPOSURE TO RADIOACTIVITY HOWEVER ARE COVERED REGARDLESS OF WHETHER EXPOSURE TO THE PUBLIC IS IMPLICATED

In Devers v. Kaiser-Hill Co., ARB No. 03-113, ALJ No. 2001-SWD-3 (ARB Mar. 31, 2005), the ALJ had held that the Complainants had not engaged in protected activity under the whistleblower provisions of the ERA, TSCA, SWDA and CERCLA because the complaints related only to safety in the workplace failing under the OSH Act. The ARB affirmed the ALJ in regard to the three environmental statutes, but reversed in regard to the ERA. The ARB found that the OSH Act is preempted by the ERA where the matter involves non-federal employees whose working conditions are governed by a federal agency having statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. See 29 U.S.C.A. § 653(b)(1). In the instant cases, the Complainants were employees of a company that had contracted with the DOE to decontaminate and decommission a nuclear weapons parts plant. DOE has exercised statutory authority to regulate occupational safety or health at government-owned, contractor-operated facilities. In addition, the Board found that it had already ruled in Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ No. 1997-ERA-14, slip op. at 18-22 (ARB Nov. 13, 2003) -- a case involving workers who were decommissioning nuclear weapons -- that "employee concerns about exposure to radioactive sources are covered by the ERA, regardless of whether exposure to public at large is implicated." Id., slip op. at 24. See also Mosley v. Carolina Power & Light Co., 1994-ERA-23, slip op. at 4 (Sec'y Aug. 23, 1996) (involving the ALARA standards). In contrast, the ARB agreed with the ALJ that the environmental statutes "'generally do not protect complaints restricted solely to occupational safety and health, unless the complaints also encompass public safety and health or the environment.'" Devers, slip op. at 10, quoting Post v. Hensel Phelps Constr. Co., 1994-CAA-13, slip op. at 2 (Sec'y Aug. 9, 1995).

PROTECTED ACTIVITY; GENERAL SAFETY COMPLAINTS
[N/E Digest XII D 1 a]

In Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996), the Board held that the ALJ had drawn too broad a conclusion by stating that "the whistleblower provisions of the various environmental statutes are intended to apply to the expression of environmental concerns rather than general safety concerns." Rather, the Board stated that "[u]nder the appropriate conditions a general safety concern stated by an employee can have an environmental impact such that it would be covered." Slip op. at 5 (citations omitted).

XII D 1 a Protected activity

A complaint or charge concerning an unsafe condition and its investigation communicated to management or to the NRC is protected under the ERA. Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

XII D 1 a Safety complaint not related to nuclear or radiation safety is not protected under ERA

In Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993), the Complainant rejected welds on and reported failure to follow proper procedures in the construction of sonarspheres. These complaints were not related to nuclear or radiation safety. The ALJ concluded that because the Respondent was licensed by the NRC, all of its employment actions were covered by the ERA's whistleblower provision. The Secretary rejected this interpretation, holding that Complainant's safety- related activity must relate to nuclear safety to be protected under 42 U.S.C. § 5851. Citing by analogy, Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (handling of asbestos in workplace; CAA only covers release of asbestos into surrounding air, not as an occupational hazard); Ellison v. Merit Systems Protection Board, No. 92-3057, 1993 U.S. App. LEXIS 27786 (D.C. Cir. Oct. 26, 1993) (Whistleblower Protection Act complaint must be linked to type of fraud, waste or abuse that WPA was intended to reach).

XII D 1 a Reporting violation and destruction of evidence

In McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993), Complainant engaged in protected activity when he reported a carpet cleaning company's regulatory violation and destruction of evidence to a member of Respondent's Hazardous Waste Crimes Task Force. Complainant was subjected to adverse action when he was subsequently reprimanded for failing to consult his supervisor before contacting the Task Force.

The proffered motivation for the reprimand was pretextual, the Secretary noting that FWPCA section 1367 protected Complainant regardless of whether he first consulted his supervisor. Cf. Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 565 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981) (hospital radiation safety officer was protected under ERA despite failure to follow normal procedure of bringing problems to the attention of responsible hospital personnel before reporting to the NRC).

XII D 1 a Complainant's concern over his own physical limitations as a safety issue

In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that the Complainant engaged in protected activity when he raised a concern in 1985 with respect to his working with mechanical hands (the Complainant had a problem with depth perception and was spilling radioactive materials), and when he raised a concern about a co-worker's soil sampling preparation procedures in November 1989. The record established that animus to the Complainant resulted from this activity, particularly on the part of two employees, and that this animus likely caused retaliation which evolved into a hostile work environment (including providing him with office space in rooms used as waste depositories).

The ALJ also found that the Respondent's articulated reasons for the adverse actions were pretextual, and that even if the dual motive analysis was applied [t]he hostility to Complainant has been so pervasive that it precludes the conclusion that the action complained of would have been taken for the reasons asserted by [the Respondent], even absent [the Complainant's] activity." Slip op. at 77.

XII D 1 a Report of gas odor

Internal complaints are within the protected scope of the SWDA. Thus, a Complainant's complaints of a gas odor brought to the attention of the Complainant's supervisor prior to the decision to discharge her established a prima facie case. Monteer v. Casey's General Stores, Inc., 88-SWD-1 (Sec'y Feb. 27, 1991).

XII D 1 a Definition; protected activity

Complainant, a vendor evaluation group leader, engaged in protected activity when, purportedly against his employer's wishes, he disqualified or refused to requalify, vendors not adhering to federal regulations governing quality assurance. See 10 C.F.R. Part 50. Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; CONTENTION THAT OVERTIME ASSIGNMENT WOULD BE UNSAFE INSUFFICIENT TO IMPLICATE NUCLEAR SAFETY DEFINITIVELY AND SPECIFICALLY

In Backus v. Indiana Michigan Power Co., ARB No. 06-129, ALJ No. 2005-ERA-8 (ARB Sept. 30, 2008), the Employer and its workers had a collective bargaining agreement consistent with NRC guidelines relating to work, rest and overtime hours. The Complainant, a nuclear power plant mechanic, was fired for refusing overtime assignments. The Complainant argued that that he engaged in ERA-protected activity when he told his duty supervisor that he would not work both the midnight shift and his day shift. The ALJ, however, found credible the duty supervisor's testimony that the Complainant did not mention any safety concerns during their conversation. This testimony was supported by the testimony of a mechanic who overheard the conversation. The ARB held, moreover, that even if it accepted the Complainant's contention that he called the assignment "unsafe," his statement to the duty supervisor did not definitively and specifically implicate nuclear safety. The ARB noted that it had previously held that "the ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern."

XII D 1 b Complaints to public in general

The whistleblower provisions of the environmental statutes protect employees who make safety and health complaints to their own employers as well as to government agencies. Making health and safety complaints to the general public, however, without a demonstration that the employee is about to file a complaint or participate or assist in a proceeding is too remote from the purposes of the environmental acts to be a protected activity. Simon v. Simmons Industries, Inc., 87-TSC-2 (Sec'y Apr. 4, 1994).

In Simon, the Secretary distinguished Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987) (contact with public interest group that evidences intent to testify or assist in a proceeding is protected; mere contact is not protected); Landers v. Commonwealth-Lord Joint Venture, 84-ERA-5 (ALJ May 11, 1983), adopted (Sec'y Sept. 9, 1983) (internal complaints protected; protection not lost because complainant was outspoken and expressed his complaints to his fellow employees); Wedderspoon v. City of Cedar Rapids, Ia., 80-WPC-1 (Sec'y July 28, 1980) (nothing in Secretary's decision about protecting speech to the public; ALJ decision no longer available).

[Editor's note: The ALJ's decision in Wedderspoon is available. In that case, Complainant had reported safety concerns to a friend who was an "environmental activist" and to the Des Moines Register -- both entities that could be expected to act on the information provided. The ALJ found that although Complainant did not directly contact federal or state authorities, the causal connection between the actions he took and the likely result was sufficient to fit within the "caused to be . . . inititated" language of the FWPCA. The Secretary adopted the ALJ's decision without additional discussion. Judge Sobernheim's decision is reasoned, based on legislative history and Title VII authority.]

[Nuclear & Environmental Whistleblower Digest XII D 1 b]
PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES

In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:

   Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

Id., USDOL/OALJ Reporter at 18 19 (citations omitted).

The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; MUST IMPLICATE SAFETY DEFINITELY AND SPECIFICALLY

In Makam v. Public Service Electric & Gas Co., ARB No. 99-045, ALJ No. 1998-ERA-22 (ARB Jan. 30, 2001), Complainant listed eleven activities he believed constituted protected activity relating to his actions in regard to a change in a Technical Specification that, because of a new method for calculation of the containment dome's average temperature, resulted in a situation that forced Respondent to take emergency measures to avoid a shutdown. The ARB held:

    To constitute protected activity under the ERA, an employee's acts must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Department of Labor, 134 F.3d 1292 (6th Cir. 1998). Makam never expressed to PSE&G officials a concern that the arithmetic method of calculating containment temperature was less "safe" than the volume weighted method that he endorsed. In fact, Makam has not proved that any of his actions were motivated by a belief that PSE&G was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks. As the ALJ found, "it cannot be determined from Complainant's testimony which method he himself advocated, and which method, if any, he believed would constitute a safety concern if implemented." 1998 ERA 22 and 26 @ 7. Thus, we cannot conclude that any of Makam's actions implicated safety definitively and specifically.

    The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern. American Nuclear Resources, supra, citing Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997). Whistleblower provisions such as the ERA's are intended to promote a working environment in which employees are free from the debilitating threat of employment reprisals for asserting company violations of statutes protecting nuclear safety and the environment. They are not, however, intended to be used by employees to shield themselves from termination actions for non-discriminatory reasons. See Trimmer, supra. In our view, Makam has not shown any nexus between his actions and some identifiable safety concern. Consequently, Makam's conduct falls outside the scope of ERA protection, and we concur with the ALJ that the complaint should be denied.

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; POTENTIAL FOR COVERAGE UNDER BOTH SECTION 11(c) OF THE OSH ACT AND THE ENVIRONMENTAL ACTS

In Williams v. Dallas Independent School District, ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012), the Complainant alleged that his former employer, the Dallas Independent School District (DISD), retaliated against him in violation of the CERCLA and the TSCA. The ALJ granted DISD’s motion for summary decision on the ground that the Complainant had not raised a genuine issue of material fact showing that he had engaged in protected activity under CERCLA and TSCA, because none of the claimed protected activity expressed concern for the environment or the public health and safety. The ARB found that the ALJ had construed the meaning of protected activity too narrowly, and remanded.

Based on a view of the record in the light most favorable to the Complainant as the non-moving party, the ARB found that the Complainant was to be relocated to a position as a Projects Director at a service center on a property that DISD had purchased from Procter & Gamble Manufacturing Company. The Complainant became aware of serious health and safety concerns about the service center, and in light of the imminent transfer initiated efforts to obtain an environmental assessment that DISD had contracted for. The ALJ found that in none of the seven actions identified by the Complainant as his protected activity did the Complainant express any concern that the environment or public health had been impacted or that any of DISD’s activities constituted a potential hazard for the environment external to the service center. The ALJ found that the Complainant’s expressions of concern when requesting the environmental assessment were for his personal safety and health and that of his coworkers, and being "purely occupational in nature" were not protected under CERCLA and the TSCA. The ARB found that this was error:

   The ALJ erred in focusing on whether Williams "expressed concern" at the time about the environment or public health, rather than on whether Williams’s actions, for which he seeks whistleblower protection, "touch[ed] on the concerns for the environment or public health and safety that are the focus of the environmental acts." … "Protection under the environmental acts is extended to a range of activities that further the respective purposes of those statutes." …. "It is a matter of well settled case law that actions that serve the environmental protection purposes of the TSCA . . . and similar environmental statutes may begin with an employee’s personal health concern." ….

USDOL/OALJ Reporter at 9 (citations and footnote omitted). The ARB stated, however, that the Complainant must have had a reasonable good faith belief that his conduct was in furtherance of the purposes of the act under which he seeks protection when he made the complaint. The ARB noted that a complainant "does not need to express his reasonable belief when he engaged in protected activity so long as he reasonably believed, at the time he voiced his complaint or raised his concerns, that a threat to the environment or to the public existed." Id. at 10. The ARB also noted that there is a potential for overlap between the environmental whistleblower acts and the Occupational Safety and Health Act. The ARB stated that "[t]he case law makes clear that while the environmental statutes ‘generally do not protect complaints restricted solely to occupational safety and health [covered by Section 11(c)],’ they do if ‘the complaints also encompass public safety and health or the environment.’" Id. at 11 (citations omitted).

Viewing the allegations of the Complainant’s complaint and evidence of record in the light most favorable to the Complainant, the ARB found that he presented sufficient information to defeat the motion for summary decision as to protected activity. Specifically, the Complainant’s communications to OSHA and repeated requests to DISD for environmental assessments pertaining to the service center clearly touched on the environmental and public health and safety concerns that are CERCLA’s focus. The ARB left it to the ALJ on remand to determine whether there was protected activity under the TSCA.

The ARB noted that a question was raised whether the Complainant subjectively believed that he was raising environmental concerns governed by CERCLA or that DISD’s actions implicated concerns implicated under CERCLA. The ALJ had looked to the Complainant’s deposition to conclude that his only concern was his personal safety and that of his coworkers. The ARB, however, found that the affidavit the Complainant submitted in opposition to the motion for summary decision, bolstered by attached documents, was sufficient to raise a genuine issue of material fact as to whether his concerns went beyond the occupational health and safety concerns raised by Section 11(c) of the OSH Act. The ARB summarized:

   Clearly, Williams, in seeking from DISD the environmental assessment for the Service Center II facility, was seeking information about a potentially serious environmental hazard. Consistent with the environmental statutes and regulations, prior ARB law, and other case law, Williams’s request for information touched on the environmental concerns CERCLA covers. Williams presented evidence that DISD resisted producing the environmental assessments Williams sought, an assertion DISD did not refute. Williams’s pursuit of information about such an environmental concern in this particular case is exactly what CERCLA attempts to ensure is not silenced, regardless of whether the employee pursues the interest solely for himself and his co-workers. The ALJ’s insistence that, to be protected by CERCLA, Williams express concern for protecting non-DISD employees, the public, or the environment, was too narrow in this case. The environmental hazard, about which Williams sought information, appears to be a potentially large and potentially serious public concern notwithstanding its obvious occupational health and safety implications. The fact question nevertheless remains as to whether Williams subjectively believed he was raising environmental concerns. …

USDOL/OALJ Reporter at 13-14 (footnote omitted).

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; EMPLOYEE'S PERSONAL HEALTH CONCERN; POTENTIAL RELEVANCE TO BOTH OSH ACT AND ENVIRONMENTAL ACTS

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB remanded the case to the ALJ primarily on the ground that the ALJ's rulings excluded relevant evidence concerning activities engaged in by Complainant related to his exposure and health concerns. The ARB held that "the ALJ premised his conduct of the hearing on the mistaken view that [Complainant's] health concern posed an occupational health issue that was solely relevant to the Occupational Safety and Health Act (OSHA) and not to the environmental acts." The ARB held that "it is a matter of well settled case law that actions that serve the environmental protection purposes of the TSCA, the CAA and similar environmental statutes may begin with an employee's personal health concern."

A concurring opinion by the Chair of the ARB noted that the ALJ had misinterpreted an earlier ruling by the Secretary of Labor that Labor Department ALJs have no jurisdiction over complaints under the OSH Act. This ruling did not compel the result that concerns raised under the OSH Act and the environmental statutes are mutually exclusive, the concurrence noting the example of TSCA record keeping requirements that would plainly include data that may overlap OSHA concerns. [see also the lead opinion, slip op. at 18-23, in regard to the relevance of the TSCA record keeping requirements].

[N/E Digest XII D 1 b]
PROTECTED ACTIVITY; TYPES OF ACTS PROTECTED MUST IMPLICATE SAFETY DEFINITELY AND SPECIFICALLY

In American Nuclear Resources, Inc. v. U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29, 1998) (case below 92-ERA-37), the Sixth Circuit discussed the preliminary requirement that a complainant establish that the ERA protected his or her conduct. The court wrote:

    [A] court first must determine whether the ERA protects the employee's acts. Building on the Act's language, courts have held that the ERA protects many types of acts that implicate safety. For example, the ERA protects an employee who files internal reports concerning regulatory violations. . . .

    Despite this generally broad reading, courts limit the ERA to protect only certain types of acts. To constitute a protected safety report, an employee's acts must implicate safety definitively and specifically. . . .

    The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern. . . .

    Moreover, an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern. . . .

Slip op. at __ (citations omitted).

In American Nuclear Resources, Inc., some Radiation Protection employees (RPs) sprayed the reactor cavity's walls to prevent airborne radiation, but delay evidently resulted in particles contaminating Complainant; Complainant then complained to his supervisor about "the stupid RP's not knowing what they were doing," even though the RPs did not work for Respondent. The next day, Complainant underwent a "full body count" to measure his radiation level; after the test, Complainant requested a copy of the body count but the RPs instead gave him an exposure report that contained the same information. There was conflicting testimony regarding whether Complainant had lost his temper during these incidents. Later on the day of the test and less than two weeks after Complainant had started work for Respondent the decision was made to discharge Complainant. The ALJ and the Secretary of Labor ruled that Respondent terminated Complainant because he questioned the RPs about safety, and, therefore violated the ERA. The Sixth Circuit reversed the DOL ruling. The court found that:

    [Complainant] Sprague's conduct falls outside the scope of ERA protection. His conduct lacks a sufficient nexus to safety concerns. Sprague did the following things that possibly implicate safety: he complained about "the stupid RP's not knowing what they were doing" after they waited too long to spray; he grew angry at the RPs while they administered his full body count test; and, after the test, he asked the RPs for a copy of the body count, even though he received a more understandable exposure report.

    Sprague, however, never alleged that ANR was violating nuclear laws or regulations. He never alleged that ANR was ignoring safety procedures or assuming unacceptable risks. He simply asked for a document, one that he had no right to receive and one that contained little useful information. ... While Sprague's complaints resulted in one set of additional body counts on the RPs, those tests ultimately revealed no safety problem or health hazard. Sprague's conduct never led anyone to change, probe, or even question ANR's safety procedures.

    In cases where courts protected the employee's acts, the employee typically alleged a safety concern that was both concrete and continuing. ... Sprague complained about an isolated incident involving a wall spraying, not a procedural hazard. A single act or inquiry may, of course, fall under the ERA's scope, but that act must bear a closer nexus to safety than Sprague's conduct.

Slip op. at __ (citations omitted).

[N/E Digest XII D 1 b]
ATTRIBUTABLE SAFETY VIOLATION

In American Nuclear Resources, Inc. v. U.S. Dept. of Labor, No. 96-3825, 1998 WL 29862 (6th Cir. Jan. 29, 1998) (case below 92-ERA-37), the court held that, even assuming that Complainant's internal safety complaint was protected activity under the ERA, Respondent did not retaliate for such actions where Complainant's supervisor testified that she fired Complainant because of his interpersonal problems, Complainant had complained primarily about the incompetence of workers who were not employed by Respondent and whose errors could not be attributed to Respondent, and therefore, Complainant's complaints alleged no safety breach by Respondent. Thus, the record did not indicate that Complainant's conduct could have forced Respondent to change its procedures or incur extra costs, and the court concluded that "[a]n employer would hardly retaliate over such an insignificant sleight."

XII D 1 b Generalized request that the government investigate health problems not identifying any particular employer or statutory violation

Where the Complainant did no more than ask State and Federal agencies and Congress to investigate his allegation that there are unusual health problems at Oak Ridge, Tennessee, and did not attribute these health problems to any particular business nor did he contend that any illegal activity was occurring, the ALJ in Reid v. Methodist Medical Center, 93-CAA-4 (ALJ Mar. 29, 1993), found that the Complainant had not engaged in protected activity. The ALJ recognized that a generic complaint actually leading to an investigation under an environmental statute of a particular employer may result in whistleblower protection for a complainant, but found no such nexus here.

XII.D.1.b. Complaints relating only to workplace

Complaints that relate only to conditions at the work place and do not touch upon general public safety and health are cognizable only under the employee protection provision of the Occuptional Safety and Health Act, 29 U.S.C. § 660(c)(1982). Sawyers v. Baldwin Union Free School District, 85- TSC-1 (Sec'y Oct. 24, 1994), citing, Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y April 23, 1987). slip op. at 4.

12 D 1 C Threat to file environmental citizen suit

Complainant's statement to a person that he was considering filing an environmental citizen suit is a protected activity, since the environmental acts protect from discrimination employees who threaten to enforce the acts. [citations omitted] It was disputed whether this person was in Respondent's employ, although it was undisputed that this person informed Respondent's security officers of Complainant's activities. Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993).

XII.D.1.c. Contacting EPA officials


Where the Complainant informs a manager that he had contacted EPA officials during a spills conference and confirmed that the Respondent should be reporting certain emissions under CERCLA, the Complainant has engaged in protected activity. Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994).

XII D 1 c Plan to go the NRC

Section 210(a)(1) of the ERA, 42 U.S.C. § 5851(a)(1), explicitly protects an employee who is "about" to go to the Nuclear Regulatory Commission with safety concerns. Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1, 1988) (the employer, however, must know about the protected activity for the complaint to be actionable).

XII D 1 c Threat to report safety issues

Internal complaints to managers and a union stewart are protected activity under the ERA.

A threat to report safety issues to the NRC is protected activity under the ERA.

Mandreger v. The Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994).

XII D 1 c Threat to make report to government agency as protected activity

The whistleblower provisions protect preliminary steps to commencing or participating in a proceeding when those steps "could result in exposure of employer wrongdoing." Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y Apr. 27, 1987), slip op. at 6. Since a complainant's threat to report a chemical spill to local authorities, if proven, could result in the exposure of wrongdoing, it may be protected. See Couty v. Arkansas Power & Light Co., 87-ERA-10 (Sec'y June 20, 1988), adopting, (ALJ Nov. 16, 1987), reversed on other grounds, 886 F.2d 147 (8th Cir. 1989); Cram v. Pullman- Higgins Co., 84-ERA-17 (Sec'y Jan. 14, 1985), slip op. at 1 (in both cases, threat to make report to government agency constituted protected activity).

XII D 1 d Bypassing the chain of command

See Saporito v. Florida Power & Light Co., 89-ERA-7 and 17 (Sec'y Feb. 16, 1995) (order denying motion for reconsideration), casenoted at XI D 3 d.

[Nuclear & Environmental Whistleblower Digest XII D 1 d]
PROTECTED ACTIVITY; GOVERNMENT OFFICIAL WORKING WITHIN THE SCOPE OF HIS OR HER DUTIES; GOVERNMENT OFFICIAL WHO TAKES CONCERNS OUTSIDE THE CHAIN OF COMMAND

In Sasse v. U.S. Department of Justice, 1998 CAA 7 (ALJ May 8, 2002), Complainant was an attorney with the U.S. Department of Justice who filed an whistleblower complaint based, inter alia, on Complainant's belief that he was subjected to harassment and discrimination by various levels of his DOJ supervisors, who were not only unsupportive, but also abusive to him, and made a conscious effort not to prosecute certain environmental crimes that he believed should be prosecuted. The ALJ's recommended decision, however, adopted Respondent's position that work performed by a government official within the scope of his job description cannot be found to be protected activity. Citing by analogy to a case arising under the Whistleblower Protection Act, the ALJ wrote:

   In Huffman v. OPM, 2001 WL 914869 (Fed. Cir. Aug. 15, 2001), the Federal Circuit Court addressed the issue of whether a complainant engaged in protected activity while carrying out assigned work assignments through normal channels. Although the Court was interpreting the Whistleblower Protection Act (WPA), 5 U.S.C.§ 2302, Respondent urges that its findings should be adopted here. The case stands for the propositions that "mere performance" of "required everyday job responsibilities" is not protected disclosure, and an employee "cannot be said to have risked his personal job security by merely performing his required duties ... [A]ll government employees are expected to perform their required everyday job responsibilities pursuant to the fiduciary obligation which every employee owes his employer." Id. at 6, quoting Willis v. Dep't of Agriculture, 141 F.3d 1139, 1143, 1144 (Fed Cir. 1998). See also Horton v. Dep't of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995). The court held that "reporting in connection with assigned normal duties is not a protected disclosure covered by the Act." Id. See also, Langer v. Dep't of Treasury, 2001 WL 1090206 (Fed. Cir. Sept. 19, 2001).

The ALJ, however, found that Complainant could claim protected activity if he proved that he had gone outside the chain of command in reporting suspected problems. Thus, the ALJ found that Complainant was engaged in protected activity when he was contacted by a Congressman's office on a matter concerning a case he was working on relating to an airport expansion project, and during that contact voiced his concerns about toxic conditions at the area of the proposed expansion.

PROTECTED ACTIVITY; FAILURE TO FOLLOW ESTABLISHED CHANNELS OR CIRCUMVENTION OF SUPERIOR
[N/E Digest XII D 1 d]

An employer may not, with impunity, discipline an employee for failing to follow the chain-of-command, failing to conform to established channels or circumventing a superior, when the employee raises a health or safety issue. ... Such restrictions on communication would seriously undermine the purpose of whistleblower laws to protect public health and safety." Talbert v. Washington Public Power Supply System, 93-ERA-35, slip op. at 8 (ARB Sept. 27, 1996) (citations omitted).

NRC STATEMENT OF POLICY
[N/E Digest I A 2 and XII D 1 d]

On May 14, 1996, the Nuclear Regulatory Commission issued a policy statement "to set forth its expectation that licensees and other employers subject to NRC authority will establish and maintain safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation." Freedom of Employees in the Nuclear Industry To Raise Safety Concerns Without Fear of Retaliation; Policy Statement, 61 Fed. Reg. 24336 (May 14, 1996). The policy statement, inter alia, stresses that management should provide leadership in this regard, that licensees have a responsibility for the acts of their contractors, and that although free to come to the NRC at any time, employees should normally raise concerns with the involved licensee. The policy statement notes that the "NRC should normally be viewed as a safety valve and not as a substitute for raising safety concerns." 61 Fed. Reg. at 24340.

XII D 1 d PROTECTED ACTIVITY; BYPASSING THE CHAIN OF COMMAND

An employee who bypasses the company's chain of command to with a complaint about violation of an environmental law is engaged in protected activity. Hoffman v. Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995) (Complainant informed school district about asbestos in roofing materials prior to informing his boss).

XII D 1 d Failure to observe established channels

In Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995), the Secretary held that under the ERA it is not permissible to find fault with an employee for failing to observe established channels when making safety complaints. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993), slip op. at 22, appeal dismissed, Bechtel Construction Co. v. Secretary of Labor, No. 93-4867 (11th Cir. 1993); see also Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1990 (9th Cir. 1991). Therefore, an allegation that the Complainant was reprimanded for circumventing the chain of command when he sent a letter to upper management complaining of record falsifications was evidence of protected activity.

XII. D. 2. Participation in NRC proceeding or investigation; protected activity

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), a case arising in the Fifth Circuit, Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent raised the argument that Complainant's internal complaints of violations of the environmental laws are not protected activities under the Fifth Circuit's decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

The Secretary noted that this issue had already been decided in an earlier decision in the case, Willy v. The Coastal Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8. The Secretary also held that Brown & Root is applicable only to the ERA and did not purport to interpret the environmental whistleblower laws at issue in this case.

[Editor's note: The 5th Circuit noted the Secretary's nonacquiescence to Brown & Root with apparent disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), although the issue was not squarely addressed in that decision.]

XII D 2 Contact with NRC investigator is, in itself, protected activity even when record does not disclose the reason for the contact

In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Secretary found that Complainant's contact with a NRC investigator was protected activity, even though the record was not clear as to why the investigator had interviewed the Complainant.

XII D 2 Participation in NRC proceeding; filing of a DOL whistleblower complaint

It is protected activity for an employee either to testify or participate in an NRC enforcement proceeding, or to file a complaint or charge of employer retaliation [with the DOL] because of safety and quality control activities. 42 U.S.C. § 5851(a)(1)-(3); McCuistion v. TVA, 89-ERA-6 (Sec'y Nov. 13, 1991).

Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993) (Complainant had filed an earlier complaint with DOL; see 85-ERA-34).

XII. D. 2. Participation in NRC proceeding or investigation; protected activity

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), a case arising in the Fifth Circuit, Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

Respondent raised the argument that Complainant's internal complaints of violations of the environmental laws are not protected activities under the Fifth Circuit's decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

The Secretary noted that this issue had already been decided in an earlier decision in the case, Willy v. The Coastal Corporation, 85-CAA-1 (Sec'y June 4, 1987), slip op. at 3-8. The Secretary also held that Brown & Root is applicable only to the ERA and did not purport to interpret the environmental whistleblower laws at issue in this case.

[Editor's note: The 5th Circuit noted the Secretary's nonacquiescence to Brown & Root with apparent disapproval in Willy v. Coastal Corp., 855 F.2d 1160 n.13 (5th Cir. 1988), although the issue was not squarely addressed in that decision.]

XII.D.2. Advising employer of intent to be a witness

In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), the Complainant claimed that he told the Employee Concerns representative that he expected to be a witness in another employee's ERA case. For purposes of analysis, the Secretary assumed that his advising about being a witness constituted protected activity.

XII. D. 3. Protected activity: questioning of safety procedures

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Complainant engaged in protected activity when she informed her supervisors about concerns that a computer used for tracking valve testing was unreliable, questioned the procedure for tracking valve tests, met with her supervisor's superior regarding what she viewed as an instruction to improperly discard certain paperwork, and raised concerns with her superiors concerning the use of non-approved criteria for certain testing.

The Complainant also engaged in protected activity when she spoke with an NRC Inspector concerning the procedure for tracking valve tests, and persisted on problem until an Licensee Event Report (LER) was filed with the NRC. [citing cases involving protected activity at early stage in investigation or as preliminary steps in a proceeding that could expose wrongdoing].


[Nuclear & Environmental Whistleblower Digest XII D 3]
PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES

In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:

   Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

Id., USDOL/OALJ Reporter at 18 19 (citations omitted).

The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.

[N/E Digest XII D 3]
PROTECTED ACTIVITY; ENVIRONMENTAL VERSUS OCCUPATIONAL SAFETY

In Tucker v. Morrison & Knudson, 94-CER-1 (ARB Feb. 28, 1997), the ALJ had concluded that Complainant's reporting of the violation of internal safety procedures was protected environmental whistleblower activity. The ALJ based this determination on the theory that "[s]afety regulations to protect personnel charged with effectuating the purposes of environmental legislation such as that involved in this incident should be deemed an integral component of the law and its implementation process." The Board disagreed because "[t]he safety violations which [an operations manager] committed did not relate to environmental safety, but rather to occupational safety." The Board wrote that: "[t]he distinction between complaints about violations of environmental requirements and complaints about violations of occupational safety and health requirements is not a frivolous one. Worker protection for whistleblowing activities related to occupational safety and health issues is governed by Section 11 of the Occupational and Safety and Health Act, 29 U.S.C. §§ 651-678 (1988), and enforced in United States Federal District Courts, not within the Department of Labor's administrative adjudicatory process." See Minard v. Nerco Delamar Co., 92-SWD-1 , slip op. at 8 (Sec'y Jan. 25, 1995); DeCresci v. Lukens Steel Co., 87-ERA-113 , slip op. at 4 (Sec'y Dec. 16, 1993); Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2, Slip op. at 3-4 (Sec'y Apr. 23, 1987).

PROTECTED ACTIVITY; NRC REQUIREMENTS
[N/E Digest XII D 3]

Where Complainant, an employee of a support services contractor, voiced complaints to the manager of nuclear power plant in which the contract services were being provided about practices that Complainant alleged violated the NRC requirement to keep radiation exposure as law as reasonably achievable, Complainant engaged in protected activity. Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996).

XII.D.3. Safety procedure

In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), the Complainant revealed to his direct supervisor and to the Employee Concerns representative that he had a safety concern with the work order for the "annunciator system," which was the same subject that the Complainant and another whistleblower had raised with a reporter. The Secretary found that this internal safety complaint constituted protected activities.

XII. D. 3. Protected activity: questioning of safety procedures

In Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), the Complainant engaged in protected activity when she informed her supervisors about concerns that a computer used for tracking valve testing was unreliable, questioned the procedure for tracking valve tests, met with her supervisor's superior regarding what she viewed as an instruction to improperly discard certain paperwork, and raised concerns with her superiors concerning the use of non-approved criteria for certain testing.

The Complainant also engaged in protected activity when she spoke with an NRC Inspector concerning the procedure for tracking valve tests, and persisted on problem until an Licensee Event Report (LER) was filed with the NRC. [citing cases involving protected activity at early stage in investigation or as preliminary steps in a proceeding that could expose wrongdoing].

XII D 3 Internal complaint covered

The complainant's discussion with a welding inspector, wherein he was encouraged to raise safety concerns about welding outside his immediate chain of command and wherein he indicated a desire to discuss such concerns, is protected activity under the ERA. The Secretary rejected the ALJ's conclusion that internal activity was not protected under the ERA, noting that she has respectfully declined to follow the Fifth Circuit's decision in Brown and Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), and instead follows the Tenth Circuit's decision in Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986).

Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992).

XII D 3 Reporting of unsafe condition; breech of security

In Crosier v. Portland General Electric Co., 91- ERA-2 (Sec'y Jan. 5, 1994), a revelation of a security deficiency to a human resources clinical psychologist who was interviewing Complainant because of complaints about Complainant's behavior, was found by the Secretary to be protected activity. Complainant had told the psychologist that he had inadvertently brought a gun into the facility.

See Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991) (internal and external complaints about breech in computer security protected under ERA), aff'd, Detroit Edison Co. v. Secretary of Labor, No. 91-3737 (6th Cir. 1992) (unpublished decision available at 1992 U.S. App. LEXIS 8280).
XII D 3 Questioning of safety procedure

Where the complainant orally questioned his foreman about the correct safety procedure for surveying and tagging contaminated tools, and also asked the foreman's superior about the issue, his questioning was tantamount to a complaint that the correct safety procedure was not being observed, and constituted protected activity under the ERA. See Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991), slip op. at 1-3 (employee's complaints to team leader about procedures used in testing instruments is protected internal complaint under the ERA); Wagoner v. Technical Products Inc., 87-TSC-4 (Sec'y Nov. 20, 1990), slip op. at 9-12 (internal oral complaints of warehouse foreman protected under analogous whistleblower provision of the TSCA, 15 U.S.C. § 2622).

Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 10-11.

XII D 3 Questioning of supervisor's instructions on safety procedures

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 court agreed with the Respondent's position that general inquiries regarding safety do not constitute protected activity. Nonetheless, where the Complainant was not merely making general inquiries regarding safety but was raising particular, repeated concerns about safety procedures, his questioning of his supervisor's instructions on safety procedures was tantamount to a complaint.

XII D 3 Questioning of safety procedure as protected activity

In Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), the Secretary held that the Complainant engaged in protected activity when he questioned radiation protection personnel about what was happening during a radiation test, and then asked for a copy of the results.

XII D 4 Expressing doubts about studies

It is well settled that reporting potential statutory violations internally to management is protected activity under employee protection provisions. Where Complainant informed managers about his doubts concerning the validity of certain studies that could be used to support licenses or permits issued pursuant to the WPCA, Complainant was engaged in protected activity. Abu- Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).

[Nuclear & Environmental Digest XII D 4]
PROTECTED ACTIVITY; COMPLAINTS ABOUT ADMINISTRATION OF PERSONNEL SECURITY CLEARANCE UNDER THE CAA, SDWA, SWDA, AND CERCLA

In Johnson v. Oak Ridge Operations Office, ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), Complainants alleged that "they were retaliated against because they expressed concerns to the DOE Inspector General and to congressional and FBI investigators about [Respondent's] administration of its personnel security clearance operation. Complainants had expressed concerns that, under the auspices of [the Chief for Personnel Security], various questionable individuals had their national security clearances granted or renewed in contravention of DOE personnel security regulations. Complainants asserted that these individuals included convicted felons, drug dealers and abusers, and persons with psychological problems. Complainants also asserted that they raised concerns regarding organized criminal activity, including gambling, drugs and prostitution, and government contract fraud." Slip op. at 3 (citations to administrative record omitted).

Since Complainants' ERA and TSCA complaints were dismissed based on sovereign immunity, the ARB Complainants characterized Complainants' case as an argument that "the federal security clearance requirements and procedures for DOE employees and applicants set forth at 10 C.F.R. Part 710 (1998) were improperly implemented and enforced, and that such improper enforcement could result in environmental damage in violation of the CAA, SDWA, SWDA, or CERCLA" Slip op. at 11. The ARB observed that Title 10, Part 710 of the CFR, concerns eligibility for access to classified matter or special nuclear material, and is issued pursuant to the Atomic Energy Act of 1954. The ARB found that employee safety concerns under the Atomic Energy Act are specifically covered by the ERA, while nothing in the CAA, SDWA, SWDA, or CERCLA relates to security clearance operations at places of employment. The ARB thus concluded that, "[s]ince Complainants' security concerns are unrelated to potential violations of the CAA, SDWA, SWDA, or CERCLA, their expressed concerns cannot be grounded in reasonably perceived violations of those statutes." Slip op. at 11.

The ARB was not convinced by Complainants' theory "that people who have something questionable in their personal background are, for that reason, likely to engage in behavior at work which will endanger the environment" finding that theory "rank speculation." Slip op. at 11.

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; EMPLOYEE MAY BE PROTECTED UNDER THE ERA WHISTLEBLOWER PROVISION EVEN IF HIS DUTIES INCLUDE REPORTING SAFETY CONCERNS

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the Complainant was a Field Project Engineer for a company that inspects and performs periodic maintenance on turbines and generators in both nuclear and non-nuclear power plants. The Complainant alleged that he was retaliated against during outage work at a nuclear power plant for reporting technical errors, procedural deficiencies, and damage to a pressurized vessel. The ALJ granted summary decision in favor of the Respondent, finding as a matter of law that the Complainant's communications about safety were not protected because they were merely part of his job, rather than a report of safety-related violations for whistleblower purposes. The ARB rejected this finding:

The Board has never taken the position that an employee's job duties can remove him from the whistleblower protection provisions of the ERA. To the contrary, the Board has consistently found that employees who report safety concerns that they reasonably believe are violations of the ERA or AEA are engaging in protected activity, regardless of their job duties. The federal appellate courts have upheld the Board in these cases.

    Finally, there is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee's job duties. To the contrary, the statute protects "any employee" who engages in protected activity. Congress passed the ERA in 1974 as part of its continuing effort to regulate the production, use, and control of nuclear energy. An employee protection provision was added in 1978 to protect employees who assist or participate in any proceeding to administer or enforce the requirements of the ERA or the Atomic Energy Act of 1954. Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns. "The whistleblower provision in the [ERA] is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act [sic]. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality." As the court in Mackowiak observed, "The [Secretary's] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well." Congress amended the ERA in 1992 to expand its whistleblower protection to workers who report safety violations to their employers. Because the ALJ erroneously concluded that Vinnett had not engaged in protected activity because he was just doing his job, the ALJ committed reversible error.

USDOL/OALJ Reporter at 10-12 (footnotes omitted).

[Nuclear and Environmental Whistleblower Digest XII D 5]
PROTECTED ACTIVITY; MERE ATTENDANCE AT A MEETING WITH THE NRC IS NOT PROTECTED ACTIVITY; COMPLAINANT'S DUTIES AS A QC MANAGER DO NOT INHERENTLY IMPLICATE PROTECTED ACTIVITY

In Pierce v. United States Enrichment Corp., ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB agreed for the most part with the ALJ's findings that the Complainant engaged in protected activity, but noted disagreement with the ALJ's finding that the Complainant engaged in protected activity when he complained about a supervisor's behavior in a meeting and when he participated in two NRC task force meetings. The ARB found that the Complainant had not

. . . engaged in any action during these meetings that was motivated by a belief that USEC was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks that would lead us to conclude that he raised nuclear safety definitively and specifically. We cannot conclude that his mere attendance at these meetings, without more, implicated safety definitively and specifically. We also do not agree with the ALJ's conclusion that Pierce's duties as a QC Manager inherently involved protected activity. This conclusion directly conflicts with the decision of the Sixth Circuit in Sasse v. U.S. Dep't of Labor, 409 F.3d 773 (6th Cir. 2005).

USDOL/OALJ Reporter at n.20.

XII D 5 Filing of nonconformance reports

The filing of nonconformance reports is protected activity under the ERA. Batts v. Tennessee Valley Authority, 82- ERA-5 (Sec'y Mar. 6, 1985) (Secretary, however, did not actually reach the issue in Batts); but see Brown & Root, Inc. v. Donovan, No. 83-4486 (5th Cir. Dec. 10, 1984).

[Nuclear & Environmental Whistleblower Digest XII D 5]
PROTECTED ACTIVITY; RAISING ISSUES AS PART OF JOB AS INTERNAL ASSESSOR, NOTIFYING DOE OFFICIAL, AND COMMUNICATING WITH MEMBERS OF CONGRESS, PUBLIC INTEREST GROUP AND NEWSPAPERS

In Gutierrez v. Regents of the University of California, ARB No. 99 116, ALJ No. 1998 ERA 19 (ARB Nov. 13, 2002), the ARB affirmed the ALJ's rulings that Complainant an internal assessor at Los Alamos National Laboratory ("LANL") engaged in protected activity when he publicly revealed information related to safety and health issues at the LANL; raised these issues in reports, as part of his job; notified a Department of Energy official about leaks in LANL's plutonium facility; provided copies of a statement about his concerns at LANL to members Congress and Citizens Concerned for Nuclear Safety; and communicated with newspapers, which quoted his health and safety concerns in articles.

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; INVESTIGATORY DUTIES

In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ Oct. 2, 2000), when asked whether he thought Respondent Ohio Environmental Protection Agency (OEPA) had engaged in violations of the nuclear and environmental acts, Complainant said "no" although he believed that the spirit of the acts had been violated. This answer complicated the question of whether Complainant, an OEPA investigator, had engaged in protected activity when he conducted an investigation to rule in or out excessive levels of contaminants as the cause of high rates of leukemia in an area surrounding a school.

The ALJ found that, although there was no evidence of direct environmental violations by the OEPA, interference with or adverse action taken against an investigator because of the investigator's promotion of extensive investigative approaches rendered the investigator actions protected activity covered by the environmental whistleblower acts. Compare Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984) (investigator discharged for a "bad attitude" covered by ERA whistleblower provision).

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; SYNERGISM BETWEEN REPORTING OF SAFETY CONCERNS AND ENVIRONMENTAL CONCERNS

In Jones v. EG & G Defense Materials, Inc.,1995-CAA-3 (ARB Sept. 29, 1998), a case involving the protected activity of the Safety Manager at an incinerator for destroying military chemical agents including nerve gas, Respondent argued that Complainant could not prevail because his asserted protected activities concerned worker safety and compliance with Army regulations, but not the CAA, SWDA, TSCA or their implementing regulations. Complainant replied that in view of the hazardous nature of such operations, there is an "'inevitable overlap between safety concerns and environmental concerns'" such that nearly all the Safety Manager's activities would be protected under the environmental statutes. Slip op. at 10, quoting Complainant's Brief. The ARB agreed with the ALJ's finding that "many of [Complainant's] activities and complaints were protected under the environmental statutes because they pertained generally to the risk of an emission of toxic substances from a dangerous instrumentality...." Slip op. at 11.

The ARB noted that Complainant did not rely solely on the general argument that his work activities inherently involved environmental safety concerns, but also on several specific activities. The ARB went on in the decision to consider whether the specific activities constituted protected activity under the various environmental statutes.

One specific activity cited by Complainant was a lab shutdown based on his concerns about, inter alia, venting of agents directly into the atmosphere. The ARB held that such concerns clearly touch on the public's environmental safety, noting that several of the chemicals handled were covered by the TSCA and the RCRA (SWDA). The ARB stated that "[t]he fact that [Complainant] expressed concern about a violation of an Army regulation does not negate the environmental concerns he also expressed .... Where a complainant has a reasonable belief that the respondent is violating the environmental laws, any other motives he or she may have for engaging in protected activity are irrelevant." Slip op. at 12-13 (citation omitted).

The second specific activity cited by Complainant was a concern about a leaking hydrogen cylinder. Respondent contended that such a concern is covered by the OSHA, and therefore not protected under the environmental statutes. The ARB, however, found that Complainant believed the leak could lead to an explosion that would destroy the building, posing a risk of emission of harmful chemicals to the general environment. Thus, the ARB agreed with the ALJ's conclusion that Complainant's decision to summon the fire department about the hydrogen leak was protected activity under the environmental statutes.

Complainant also submitted an internal audit report where he noted a deficiency in the facility's emergency preparedness plan. Since such a plan is required under the RCRA (SWDA), the ARB found that the audit report's submission was a protected activity.

Finally, Complainant had been ordered to incorporate the findings of an independent safety assessment report by MITRE Corporation into the Disposal Facility's safety system plan, and as result Complainant had concluded that certain hazard analyzes were needed (a process that could take six months to complete). The ARB found that Complainant's reporting of the need for the hazard analyzes to his superiors was protected activity because "the analyzes would likely lead to repair or changes in the plant that would diminish the likelihood of a release of toxic chemicals into the atmosphere." Slip op. at 14 (citation omitted). In addition, the ARB found that declination to sign a document indicating that all of the deficiencies identified in a certain part of the MITRE report were "acceptable" was protected activity, because Complainant "in effect was pressing the need to correct deficiencies so as to diminish the likelihood of a catastrophic release of toxic chemicals into the atmosphere." Slip op. at 14 (citation omitted).

[Nuclear & Environmental Digest XII D 5]
PROTECTED ACTIVITY; NO REQUIREMENT THAT THE STATUS QUO IS IN VIOLATION OF ANY SPECIFIC STANDARD IF EMPLOYEE IS MAKING RECOMMENDATIONS ON HOW TO BEST SERVE NUCLEAR SAFETY

In Jarvis v. Battelle Pacific NW Laboratory,1997-ERA-15 (ARB Aug. 27, 1998), Complainant was given responsibility for developing a new Risk Acceptance Criteria (RAC) for application to a Department of Energy Tank Waste Remediation. The ALJ found that ERA protection of the RAC work was contingent on proof that Complainant reasonably believed that the risk assessment methodology then in use by DOE was in violation of the ERA. The ARB, however, rejected this finding. Rather, the ARB held that "[t]he protection afforded whistleblowers by the ERA extends to employees who, in the course of their work, must make recommendations regarding how best to serve the interest of nuclear safety, even when they do not allege that the status quo is in violation of any specific statutory or regulatory standard." Id. @ 8.

To the same effect: Miller v. Tennessee Valley Authority, 1997-ERA-2 @ 5 (ARB Sept. 29, 1998) (Complainant expressed security concerns about proposed implementation and installation of new security system at nuclear facility).

[N/E Digest XII D 5]
PROTECTED ACTIVITY; REPORTING VIOLATIONS IN COURSE OF REGULAR DUTIES

Reporting violations of environmental statutes in the course of one's regular duties is protected activity. Thus, in White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997), there was no serious issue that an environmental inspector with responsibility for monitoring and reporting on Respondent's compliance with certain provisions of the SDWA was engaged in protected activity when he filed such reports.

XII D 5 Employee who reports safety violations as a routine part of his or her job

The fact that an employee reports safety violations in the course of his or her regular duties does not remove that activity from categorization as protected activity. Jopson v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995) (fact that NRC investigation during which violation was reported was merely routine did not alter protected nature of the activity).


12 d 5
XII D 5 Quality control personnel at nuclear power facilities are generally engaged in work that is protected activity

A quality assurance specialist's participation in a surveillance to identify instruments that were not being correctly calibrated is protected activity under the ERA. Employees engaged in quality control work in nuclear power facilities are precisely the people the ERA whistleblower provision is designed to protect. Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995).

XII D 5 Quality control functions are by definition protected activities

Employees performing quality control and quality assurance functions are engaged in activity protected by section 5851 of the ERA. Thus it is irrelevant whether they had contact with NRC or made any "internal protest" regarding safety problems in determining whether they engaged in protected activity.

Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand) (citing Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) ("In a real sense, every action by quality control inspectors occurs 'in an NRC proceeding,' because of their duty to enforce NRC regulations.")).

XII D 5 All quality control personnel engage in protected activity

It is not required that every element of a legal cause of action be set forth in an employee's section 5851 complaint. Moreover, a mere allegation that Complainant was assigned quality assurance functions is sufficient to state a cause of action since it has been recognized that all quality control personnel are engaged in activity protected by section 5851. [Complainant asserted that he was retaliated against because he performed his quality assurance functions of identifying deficiencies in Respondent's nuclear quality assurance program]. Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986).

XII D 6 Complaints about poor recordkeeping, mismanagement and waste

Where Complainant sent a letter to Senator Simpson alleging that she was terminated by Respondent -- a rural water association -- for her complaints to management about inaccurate records, mismanagement and waste, and none of her complaints were related to nuclear safety or violations of the ERA, nor environmental safety or violations of any of the other environmental statutes with the jurisdiction of the Secretary of Labor, the case was dismissed because there was no allegation of protected activity under those statutes. Deveraux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993) (assuming that a complaint to a Senator could be treated as a complaint).

[Nuclear and Environmental Whistleblower Digest XII D 6]
PROTECTED ACTIVITY; BAD MANAGEMENT IS NOT ACTIONABLE

In Jones v. United States Enrichment Corp., ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004), the ALJ had found that inadequacies in the quality of supervision received by the Complainant were discriminatory. The ARB, however, held that "[b]ad management . . . is not actionable under the ERA whistleblower protection provision. Accord Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 88-SWD-2, slip op. at 40-41 (ARB Feb. 28, 2003). The whistleblower protection provision addresses only discrimination motivated by protected conduct." USDOL/OALJ Reporter at 13. The Board concluded that even if, as the Complainant alleged, his supervisors did not properly train him, shunned him and unfairly evaluated him in a process to decide which of two employees would be riffed, the Complainant failed to prove by a preponderance of the evidence that the managers retaliated because of his protected activity. The Board wrote: "That [the Respondent's] reason for terminating [the Complainant's] employment might be unpersuasive or even 'obviously contrived' does not mean that [the Complainant's] succeeds here. 'It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.' St. Mary's Honor Center, 509 U.S. at 519, 524. See also Gale v. Ocean Imaging and Ocean Resources, Inc., ARB No. 98-143, ALJ No. 1997-ERA-38, slip op. at 13 (ARB July 31, 2002) (We are not a 'super-personnel department that reexamines an entity's business decisions,' citing Morrow v. Wal-Mart Stores, Inc., 152 F. 3d 559, 564 (7th Cir. 1998))."

XII D 6 Complaints about bookkeeping or voucher inaccuracies

Where the Complainant activities were not concerned with safety or pollution but with bookkeeping or voucher inaccuracies, the ALJ found that she had not engaged in protected activity under the ERA or its implementing regulations. Deveraux v. Wyoming Association of Rural Water, 93-ERA-18 (ALJ Apr. 16, 1993).

XII D 6 Complainant's objection to hiring of outside personnel

In Fugate v. Tennessee Valley Authority, 93-ERA-9 (ALJ July 12, 1993), the ALJ concluded that a Complainant's objection about the hiring of outside personnel who he felt was not as qualified as internal craftsmen was not sufficiently related to plant safety to raise a safety complaint within the protection of the ERA. The ALJ recognized that such a concern could be viewed as being related to plant safety but "so could almost every other aspect of a plant's operation." Thus, the ALJ concluded that it was actually a purely personnel matter. The ALJ also noted that a Memorandum of Understanding between OSHA and the NRC, printed at 53 Fed. Reg. 943, 950 (Oct. 31, 1988), listed the concerns these agencies have over worker protection at NRC licensed facilities -- and that the memorandum did not encompass Complainant's concern over personnel qualifications.

XII D 7 Complaint about schedule and duties

In Bailey v. System Energy Resources, Inc., 89-ERA- 31, 32 (Sec'y July 16, 1993), the Complainants, junior decon technicians, raised complaints about a change in their work schedule that required them to assist in smearing and frisking (decontamination procedures) of tools. One evening shortly thereafter, Complainants were observed lying on the floor, and later that evening the plant manager revoked their plant access privileges, having concluded that they had been sleeping. The next morning, Respondent's site director decided to fire the Complainants. Later that day, one of the Complainants contacted the Nuclear Regulatory Commission to inquire about decon technicians smearing and frisking tools. Complainants did not learn that they had been fired until after the contact with NRC. Complainants contended that the alleged sleeping incident was an excuse get rid of them because they were raising safety concerns.

The Secretary agreed with the ALJ that Complainants failed to prove they were engaged in protected activity by making internal complaints about safety matters (i.e., they did not raise, or were not perceived as raising, internal safety complaints -- they were complaining about schedule and duties). In addition, the telephone call to NRC was made after Complainants had been denied site clearance, and therefore the inference that protected activity, much less the likely motive, for the adverse action could not be raised. Finally, even if a prima facie case had been established, the adverse action was motivated by a legitimate, nondiscriminatory reason -- sleeping on the job.

[Nuclear & Environmental Whistleblower Digest XII D 7]
PROTECTED ACTIVITY; REQUEST FOR DEVIATION LETTER FROM HOURS OF WORK LIMITS UNDER NRC GENERIC LETTER 82-12

In Tipton v. Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB Sept. 29, 2006), PDF | HTM the Complainant alleged that he was fired because he engaged in protected activity when he complained about the Respondent's violations of NRC Generic Letter 82-12, which limits the amount of overtime that staff members performing safety-related functions may work. The Complainant had been called into work that would have put him in violation of the NRC rule. He repeatedly requested, but was not provided, a deviation letter as provided for in the Rule. The Respondent contended that this amounted to mere administrative requests for a form and did not implicate nuclear safety. The ARB disagreed, noting that the clear objective of the NRC rule was "to prevent situations where fatigue could reduce the ability of operating personnel to keep the reactor in a safe condition." The ARB found a causal relation between the Complainant's actions and his discharge because of temporal proximity, evidence that the Respondent had been hostile to the NRC rule, and findings that the Respondent proffered false reasons for firing the Complainant. Because the proffered reasons were not legitimate, the ARB found that the Respondent had not presented clear and convincing evidence that it would have taken adverse action against the Complainant even in the absence of protected activity.

XII D 8 Definition of protected activity; employee suggestions

Internal complaints to management in the form of employee suggestions is protected activity under the Solid Waste Disposal Act, as amended, 42 U.S.C. § 6971(a). Helmstetter v. Pacific Gas & Electric Co., 86-SWD-2 (Sec'y Sept. 9, 1992).

[Nuclear & Environmental Whistleblower Digest XII D 8]
PROTECTED ACTIVITY; MAY BE ORAL OR IN WRITING; MUST BE SPECIFIC TO A PRACTICE, CONDITION, DIRECTIVE OR OCCURRENCE; REASONABLE BELIEF THAT SAFETY STANDARD IS BEING COMPROMISED; DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES

In Williams v. Mason & Hanger Corp., ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:

   Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

Id., USDOL/OALJ Reporter at 18 19 (citations omitted).

The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant, ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co., 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.

[Nuclear and Environmental Whistleblower Digest XII D 9]
PROTECTED ACTIVITY; COMPLAINT ABOUT BEING RETALIATED AGAINST FOR RAISING SAFETY COMPLAINTS

In Saporito v. Central Locating Services, Ltd., ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB recognized that "[c]omplaining to an employer about being retaliated against for raising safety complaints can be protected activity." Slip op. at 9. In the instant case, however, it was unwilling to entertain an argument from the Complainant that he had engaged in such activity where he had not presented this theory to the ALJ, and where the argument was supported by no "references to the record, legal authority or analysis." Id. at 9.

XII.D.9. Complaint about retaliation

A discussion with a manager in which the Complainant complains that he had already been retaliated against for being "open" with management is protected activity. Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994) (discussion occurred immediately following a plant meeting on a new "open" management style).

PROTECTED ACTIVITY; COMPLAINT TO MANAGEMENT ALLEGING RETALIATION FOR PROTECTED SAFETY CONCERNS
[N/E Digest XII D 9]

In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary held that a complaint to management alleging retaliation for his safety concerns was protected activity. In Diaz- Robainas the Complainant alleged in a letter complaining about a negative performance appraisal that the appraisal was in retaliation for his "commitment to projects that [he] considered critical for the nuclear safety of [the facility] and which [certain supervisors] for budgetary or other reasons, clearly opposed." The Secretary found that the Complainant's perception of retaliation for raising protected concerns was reasonable, and that his raising of the fairness of the rating was not disingenuous.

XII d 10 Work refusal; good faith belief

A refusal to work is protected under the ERA when

A worker . . . has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience . . . Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials . . . and, if found safe, adequately explained to the employee.

Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984), slip op. at 6-7. See also Sartain v. Bechtel Constructors Corp., 87-ERA-37 (Sec'y Feb. 22, 1991), slip op. at 7-17; Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9, 1988), slip op. at 9-11; Smith v. Catalytic, Inc., 86-ERA-13 (Sec'y May 28, 1986), slip op. at 3.

Actual safety is not the relevant issue in regard to this point; rather the pertinent issues are whether Complainant had a reasonable, good faith belief that conditions were unsafe, and whether Respondent provided sufficient information to dispel these concerns and adequately explained the safety issues raised.

Under the circumstances in the instant case, if Respondent was in full compliance with the NRC regulations, and that fact as well as the reasons for the change in procedures were adequately explained to employees, the refusal to work would lose its protection under the ERA at that point. That, however, was not the case.

Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993).

[Nuclear & Environmental Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK ANALYSIS NOT APPLICABLE WHERE CONFLICT BETWEEN SUPERVISORY DIRECTION AND EMPLOYEE RESPONSE WAS AVOIDED

In Timmons v. Franklin Electric Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that the ALJ erroneously applied the "work refusal" standard provided in Pensyl v. Catalytic, Inc., 1983-ERA-1 (Sec'y Jan. 13, 1984), because Respondent's foreman withdrew his directions almost immediately after Complainant voiced his objections to a plant to bury oil barrels, and thus did not place Complainant in a position where he may have refused to comply with supervisory instruction. The ARB held that "[b]ecause a direct conflict between supervisory direction and employee response was avoided, the Pensyl work refusal analysis is not applicable." Timmons, 1997-SDW-2 @ n.5.

[N/E Digest XII D 10]
PROTECTED ACTIVITY; REFUSAL TO WORK; RESPONDENT IS NOT REQUIRED TO READ COMPLAINANT'S MIND

In Macktal v. Brown & Root, Inc., 86-ERA-23 (ARB Jan. 6, 1998), Complainant alleged that his request to be relieved of his duties is protected activity under Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984). The ARB, however, found that "[i]t would have required considerable mental gymnastics on the part of [Respondent's] managers to recognize that, when [Complainant] said he wanted to be relieved of his duties, he really meant he wanted to be reassigned to work that did not require him to violate NRC procedures." Slip op. at 5. The ARB stated that it agreed with the ALJ that "a reasonable person could only interpret [Complainant's] request as a resignation and could not be held responsible for failure to intuit what [Complainant] now claims was on his mind." Slip op. at 5-6.

PROTECTED ACTIVITY; WORK REFUSAL; EMPLOYER MUST INVESTIGATE AND EXPLAIN, BUT IS NOT REQUIRED TO ENGAGE IN DIALOG WITH WORKERS
[N/E Digest XII D 10]

In Sutherland v. Spray Systems Environmental, 95-CAA-1 (Sec'y Feb. 26, 1996), the Secretary, citing, inter alia, Pensyl v. Catalytic, Inc., 83-ERA- 2 (Sec'y Jan. 13, 1984), noted that a work refusal loses protection under the CAA and the TSCA after the perceived hazard has been investigated by responsible management officials, and if found safe, adequately explained to the employee. "Management has the prerogative to determine which means it deems to be most effective provided such means comport with requisite safety and health standards. There is no requirement for management to engage in a dialog with the refusing workers as to which procedure would be most efficacious." Slip op. At 5-6.

In Sutherland, the Complainants engaged in protected activity under the CAA and the TSCA when they expressed concern that the containment preparation method being used during asbestos removal in a school might be unsafe for school children who would be returning a few weeks after the completion of the job. The Complainants were experienced and/or trained in asbestos removal, and questioned the method being mandated by a new supervisor. The Secretary found that "it was incumbent on management to meet with the Complainants and adequately explain to them that the change in procedure was appropriate given the specifics of the job, which differed significantly from [the Complainants'] previous job experience." Slip op. at 5. The Secretary found that the Respondent's management did not make an adequate response, and that although there was proof that the job had been conducted consistent with Federal and industry standards, proof of an actual underlying violation the CAA and TSCA is not determinative of whether the Complainant's concerns were reasonable and whether there had been an adequate explanation to the workers.

In Stockdill v. Catalytic Industrial Maintenance Company, Inc., 90-ERA-43 (Sec'y Jan. 24, 1996), in contrast, the Secretary agreed with the ALJ's conclusion that the Complainant's initial concerns about wearing a dust mask lost their protection after the Respondent adequately responded to the Complainant's concerns. The ALJ found that the Respondent in fact went to significant lengths to investigate and explain the safety of the work area, and gave the Complainant opportunities to change his mind about the work refusal.

Editor's note: In Stockdill, the Secretary quoted extensively from the ALJ's decision. In seeming contradiction to the ruling in Sutherland that management is not required to engage in a dialog with employees who refuse to work after an adequate explanation was made, the ALJ in Stockdill, as quoted by the Secretary, wrote that "Had Complainant inquired further or had he more expertise or knowledge of contamination prevention or dust detection, Respondent might have been required to further explain and display the safety of Complainant's work area."

PROTECTED ACTIVITY; WORK REFUSAL UNDER THE CAA; GOOD FAITH REASONABLE BELIEF
[N/E Digest XII D 10]

In Crow v. Noble Roman's, Inc., 95-CAA-8 (Sec'y Feb. 26, 1996), the Secretary held that the same standards that apply in an ERA work refusal case also apply in a CAA case, i.e., a worker may refuse work when he or she has a good faith, reasonable belief that working conditions are unsafe or unhealthful. In Crow the Respondent violated the CAA when it discharged a technician who refused to work on refrigeration equipment because he did not have a certification to work on such equipment containing ozone-depleting compounds.

XII D 10 Protected activity; refusal to work

A foreman who had been demoted after making safety complaints on behalf of the crews, engaged in further protected activity when he played a role in the crew's subsequent work refusal related to those safety issues. The Complainant's actions were found to be protected under section 211(a)(1)(F), 42 U.S.C. § 5851(a)(1)(F). Harrison v. Stone & Webster Engineering Group, 93-ERA-44 (Sec'y Aug. 22, 1995).

XII D 10 Work refusal; workplace safety

In work refusal cases, it is not necessary that the safety issue directly involve nuclear hazards. Rather, a non-nuclear safety concern as the basis for the work refusal is protected under the ERA where retaliatory discharge of the complainant has a potentially substantial effect on nuclear safety (e.g., the eventual safe operation of the nuclear plant). Respondent had contended that OSHA was the appropriate statute to cover concerns about workplace safety unrelated to violations of ERA or the Atomic Energy Act of 1954.

Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993).

XII D 10 Work refusal

From Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984):

The legislative history of the employee protection provision of the ERA, 42 U.S.C. § 5851, makes it clear that it was drafted with the Coal Mine Health and Safety Act, among other laws, as a model. When section 5851 was added to the Energy Reorganization Act in 1978, the Senate Committee Report on the employee protection provision which became law summarized it saying "This amendment is substantially identical to provisions in the Clean Air Act and the Federal Water Pollution Control Act . . . [and] such provisions were patterned after the [Labor Management Relations Act, 1947] and a similar provision in [the Coal Mine Health and Safety Act]." S. Rep. No. 95-848, May 15, 1978, reprinted in 1978 U.S. Code Cong. & Ad. News 7303. Thus, section 5851 and the employee protection provision of the Federal Mine Safety and Health Act (a successor statute to the Coal Mine Health and Safety Act) are in pari materia and it is entirely appropriate to look to the legislative history and case law under the mine safety statutes for guidance in interpreting the ERA. Rutherford Food Co. v. McComb, 331 U.S. 772 (1975).

The same Congress had the year before discussed the intended scope of the employee protection provision in the Federal Mine Safety and Health Act. P.L. 95-164, 91 Stat. 1290. Senate Report No. 95-181 stated: "The Committee intends that the scope of the protected activities to be broadly interpreted by the Secretary [of Labor], and intends it to include not only the filing of complaints seeking inspection . . . or the participation in mine inspections . . . , but also the refusal to work in conditions which are believed to be unsafe or unhealthful and the refusal to comply with orders which are violative of the Act or [regulations] . . . ." S. Rep. N. 95-181, May 16, 1977 (9th Cong., 2d Sess.), reprinted in 1977 U.S. Code Cong. & Ad. News 3401, 3435.

The Secretary went on to discuss additional legislative history and cases construing this provision, and concluded that "[a] workable, balanced rule, equally applicable to the ERA, can be distilled from this legislative history and case law." The following is that rule:

A worker has the right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience. Refusal to work is protected if "[the complainant] reasonably believed that he confronted a threat to his safety or health." [citations omitted] Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee. [citations omitted]

Employees have no protection under section 5851 for refusing to work simply because they believe another method, technique, procedure or equipment would be better or more effective.

If the case reaches the dual motive analysis, evidence on the treatment of other workers who may have refused assignment is relevant.

XII D 10 Work refusal

The Secretary's work refusal decisions under the analogous employee protection provision of the ERA were applied in Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993), in which the complaint was based on the CAA, the TSCA and CERCLA. Those decisions provide that a worker has the right to refuse work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience. Pennsyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984); accord Sartain v. Bechtel Constructors, 87-ERA-37 (Sec'y Feb. 22, 1991). In the instant case, however, there was no allegation that conditions were unsafe or unhealthful and the work refusal (to work on the development of software) was not protected.

Where an employee's work refusal does not meet the Pennsyl test, an employer legitimately may discharge the employee for refusing a work assignment. Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 8, 1988); see also Sartain, slip op. at 17 (discharge permissible because of unprotected work refusal and abusive manner).

XII D 10 Refusal to work, generally

From Tritt v. Fluor Constructors, Inc., 88-ERA-29 (ALJ Jan. 12, 1989):

When asserted in proper circumstances, a refusal to work is a protected activity. The standard announced by the Secretary to be applied in these cases is:

A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience.

Pennsyl v. Catalytic, Inc., 83-ERA-2 (Jan. 13, 1984). The Secretary has also concluded that a refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee. Bennett v. Kaiser Aluminum & Chemical Corp., 2 MSHC 1424 (1981).

In Tritt, the ALJ concluded that since there was no evidence that the Complainant had visited the work area on the day in question, he could not have known about the safety conditions on that day (safety conditions in the reactor building changed daily), and could not have known whether his concerns had been addressed in the interim. Since the Complainant was familiar with safety procedures, but opted to report to his Union Steward rather than supervisory personnel, the ALJ concluded that the Complainant's basis for raising the safety question was something other than a desire to correct a perceived problem. Based on these, and other circumstances, the ALJ concluded that the Complainant did not have a good faith, reasonable belief that working conditions were unsafe or unhealthful at the time he refused his job assignment.

[Editor's note: Four contemporary cases against Fluor Constructors were settled (88-ERA-28 and 30, and 89-ERA-28 and 29. For some reason this case was not settled and is still pending before OAA at least as of 5-3-93]

XII D 10 Refusal to work

Work refusals may be protected under the ERA if the complainant has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience. Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee. See Pennsyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984) [additional citations omitted]

In Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y Aug. 25, 1993), Complainant did not visit the work site the morning of his work refusal, and the ALJ ruled that he could not have known it his concerns about the lack of an air monitoring machine and a HP technician at the work site had been addressed. The Secretary, however, concluded "as a matter of law" that the ALJ required too much of a "reasonable" person in Complainant's circumstances.

Specifically, Complainant testified that an incident involving falling particles that might have been radioactive did not occur until the end of his workday, and that he did not know to whom to address his safety concern since he was working under the power plant's direction (although a contract employee) and did not have a foreman. Further, the next morning Complainant clearly communicated to a union steward and to a power plant supervisor his safety concerns. The safety complaints were not vague.

The Secretary ruled that prior work refusal decisions, when read together, "require the employer to do an investigation and provide an adequate explanation to an employee who articulates a safety based reason for refusing to work." In the instant case, there was no investigation or attempted explanation.

The Secretary stressed that he agreed with the ALJ's findings of fact and assessment of witness credibility, but was simply reaching a different legal conclusion.

XII D 10 Refusal to work as protected activity

The refusal to work in some circumstances is protected activity under the employee protection provision of the ERA. The general rule for such cases was stated in Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1983):

A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience . . . . Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee.

Id., slip op. at 6-7.

In Wilson v. Bechtel Construction, Inc., 86-ERA-34 (Sec'y Feb. 9, 1988), the Complainant asked general safety related questions which had been answered several times; at that point, without being more specific about why he felt his safety would be endangered by entering a containment area without a respirator, the Respondent could reasonably conclude that the Complainant's concerns had been adequately responded to and its obligation under Pensyl had been met. The Complainant testified that he believed he was supposed to contact his union stewart if he had any safety concerns; however there was nothing in the record to show that anyone had told the Complainant that this was a proper procedure. The Secretary found that under the circumstances, the Respondent had a legitimate business reason, refusal of a work assignment, to discharge the Complainant.

XII D 10 Failure to complete quality control documents

In Durham v. Georgia Power Company and Butler Service Group, 86-ERA-9 (ALJ October 24, 1986), the ALJ found that the Complainant was not engaged in protected activity when he refused to sign a particular section on a quality control form. The Complainant argued that by not signing the form, he was refusing to violate applicable quality control procedures, and therefore, his suspension was a result of protected activity. Prior to the suspension, the management had explained to the Complainant that his signature was required to proceed with work and the signature did not violate or compromise the integrity of the quality control procedures. The ALJ noted that had management requested the Complainant to falsify control documents or violate quality control procedures in any way, his refusal would constitute protected activity. The ALJ found, however, that there was no request for a falsification of the document nor any compromise of quality control procedures; rather, the Complainant merely did not agree with the management's request or explanation. The ALJ found that the Complainant, after the explanation and before his suspension, knew or should have know that the requested signature would not violate applicable quality control procedures. His refusal to sign the form after such explanation was not protected activity, it was merely refusing to obey a valid order. Accordingly, the Complainant failed to establish a prima facie case that his suspension was in retaliation for protected activity.

XII D 10 Work refusal; internal complaint

In Tritt v. Fluor Constructors, Inc., 88-ERA-29 (Sec'y Aug. 25, 1993), the Secretary rejected Respondent's contention that work refusals are not protected under the ERA because they are internal complaints. The Secretary noted that he has declined to follow Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir, 1984), and has consistently held that internal complaints are protected activities under employee protection provisions.

XII D 10 Work refusal

See Crosby v. United States Dept. of Labor, No. 93-70834 (9th Cir. Apr. 20, 1995) (unpublished) (case below 85-TSC-2), in which the court affirmed the Secretary's determination that the Complainant was discharged for proper reasons when he refused to work on a project because he did not like the protocol. The court cited the Secretary's work refusal analysis in Pennsyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984).

XII D 10 Refusal to work

In a Recommended Decision and Order on Remand, the ALJ in Smith v. Catalytic, Inc., 86-ERA-12 (ALJ Feb. 13, 1987) addressed the issue of whether the Complainant's refusal to return to work constituted protected activity by applying the standard enunciated in Pensyl v. Catalytic, Inc., 83-ERA- 2 (Sec'y 1984). The ALJ found that after about three weeks of work at the nuclear power plant, the Complainant was exposed to noble gas. Prior to the exposure, the Complainant participated in a course of instruction involving radiation safety and was taught that exposure to noble gas is treated as a skin disorder. On the day that the noble gas was present in the work area, the senior health technician routinely monitored air samples and advised the employees, including the Complainant, of a potential noble gas problem. He suggested that they leave the work area early so the gas could blow off their skin and clothes, reemphasizing that the noble gas was a skin problem. The technician then took a second gas sample.

In accordance with Pensyl, the ALJ found that the technician's taking gas samples and informing the employees constituted an investigation by an appropriate management official and that he made an adequate explanation to the employees within the meaning of Pensyl. Furthermore, other health physics personnel advised the Complainant that he was exposed to noble gas and not radiation contamination, and if he sat in the breezeway it would blow off his clothes and skin. The ALJ also found that this constituted an investigation by the management and an adequate explanation to the employee within the meaning of Pensyl. Moreover, the ALJ found that every other employee in that work area continued working their regular shift for the remainder of the day. Although it was reasonable for the Complainant to be concerned about airborne contaminants because of his history of bronchitis, with his training and experience, he knew that noble gas was a skin exposure that would dissipate by allowing it to blow off. The ALJ concluded that the Complainant did not have a good faith, reasonable belief that the working conditions were unsafe and that responsible management officials perceived the potential hazard, investigated it, and adequately explained it to the employees, including the Complainant. The claim was dismissed and the Secretary adopted the finding that the Respondent fulfilled its obligation to investigate and explain why the perceived safety hazard was not a threat to the Complainant's heath and safety. See Smith v. Catalytic, Inc., 86-ERA-12 (Sec'y Mar. 18, 1988).

XII D 11 Attorney's memorandum

A corporate attorney who wrote a summary memorandum concerning the results of an environmental audit of a subsidiary in which he concluded that the subsidiary was involved in various violations of certain environmental statutes, and who refused to rewrite the memo to tone it down, was engaged in protected activity under the ERA. Willy v. The Coastal Corp., 85-CAA-1 (ALJ Nov. 29, 1988).

XII D 12 a Taking photographs as protected activity

When an oil spill continued after the complainant objected to a waste disposal crew foreman, and the complainant borrowed a camera and started openly taking photographs, the complainant taking of pictures "was an aspect of [his] objection and thus was protected."
Adams v. Coastal Production Operators, Inc., 89- ERA-3, fn.4 (Sec'y Aug. 5, 1992).

[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]

[Nuclear & Environmental Digest XII D 12 a]
PROTECTED ACTIVITY; PROTECTION UNDER ENVIRONMENTAL WHISTLELOWER ACTS MAY BEGIN WITH AN EMPLOYEE’S PERSONAL HEALTH CONCERN – FOCUS FOR DETERMINATION OF PROTECTION IS WHETHER THE EMPLOYEE’S ACTIVITY TOUCHED ON THE CONCERNS FOR THE ENVIRONMENT OR PUBLIC HEALTH AND SAFETY THAT ARE THE FOCUS OF THE ENVIRONMENTAL ACT

In Williams v. Dallas Independent School District, ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012), the Complainant alleged that his former employer, the Dallas Independent School District (DISD), retaliated against him in violation of the CERCLA and the TSCA. The ALJ granted DISD’s motion for summary decision on the ground that the Complainant had not raised a genuine issue of material fact showing that he had engaged in protected activity under CERCLA and TSCA, because none of the claimed protected activity expressed concern for the environment or the public health and safety. The ARB found that the ALJ had construed the meaning of protected activity too narrowly, and remanded.

Based on a view of the record in the light most favorable to the Complainant as the non-moving party, the ARB found that the Complainant was to be relocated to a position as a Projects Director at a service center on a property that DISD had purchased from Procter & Gamble Manufacturing Company. The Complainant became aware of serious health and safety concerns about the service center, and in light of the imminent transfer initiated efforts to obtain an environmental assessment that DISD had contracted for. The ALJ found that in none of the seven actions identified by the Complainant as his protected activity did the Complainant express any concern that the environment or public health had been impacted or that any of DISD’s activities constituted a potential hazard for the environment external to the service center. The ALJ found that the Complainant’s expressions of concern when requesting the environmental assessment were for his personal safety and health and that of his coworkers, and being "purely occupational in nature" were not protected under CERCLA and the TSCA. The ARB found that this was error:

   The ALJ erred in focusing on whether Williams "expressed concern" at the time about the environment or public health, rather than on whether Williams’s actions, for which he seeks whistleblower protection, "touch[ed] on the concerns for the environment or public health and safety that are the focus of the environmental acts." … "Protection under the environmental acts is extended to a range of activities that further the respective purposes of those statutes." …. "It is a matter of well settled case law that actions that serve the environmental protection purposes of the TSCA . . . and similar environmental statutes may begin with an employee’s personal health concern." ….

USDOL/OALJ Reporter at 9 (citations and footnote omitted). The ARB stated, however, that the Complainant must have had a reasonable good faith belief that his conduct was in furtherance of the purposes of the act under which he seeks protection when he made the complaint. The ARB noted that a complainant "does not need to express his reasonable belief when he engaged in protected activity so long as he reasonably believed, at the time he voiced his complaint or raised his concerns, that a threat to the environment or to the public existed." Id. at 10. The ARB also noted that there is a potential for overlap between the environmental whistleblower acts and the Occupational Safety and Health Act. The ARB stated that "[t]he case law makes clear that while the environmental statutes ‘generally do not protect complaints restricted solely to occupational safety and health [covered by Section 11(c)],’ they do if ‘the complaints also encompass public safety and health or the environment.’" Id. at 11 (citations omitted).

Viewing the allegations of the Complainant’s complaint and evidence of record in the light most favorable to the Complainant, the ARB found that he presented sufficient information to defeat the motion for summary decision as to protected activity. Specifically, the Complainant’s communications to OSHA and repeated requests to DISD for environmental assessments pertaining to the service center clearly touched on the environmental and public health and safety concerns that are CERCLA’s focus. The ARB left it to the ALJ on remand to determine whether there was protected activity under the TSCA.

The ARB noted that a question was raised whether the Complainant subjectively believed that he was raising environmental concerns governed by CERCLA or that DISD’s actions implicated concerns implicated under CERCLA. The ALJ had looked to the Complainant’s deposition to conclude that his only concern was his personal safety and that of his coworkers. The ARB, however, found that the affidavit the Complainant submitted in opposition to the motion for summary decision, bolstered by attached documents, was sufficient to raise a genuine issue of material fact as to whether his concerns went beyond the occupational health and safety concerns raised by Section 11(c) of the OSH Act. The ARB summarized:

   Clearly, Williams, in seeking from DISD the environmental assessment for the Service Center II facility, was seeking information about a potentially serious environmental hazard. Consistent with the environmental statutes and regulations, prior ARB law, and other case law, Williams’s request for information touched on the environmental concerns CERCLA covers. Williams presented evidence that DISD resisted producing the environmental assessments Williams sought, an assertion DISD did not refute. Williams’s pursuit of information about such an environmental concern in this particular case is exactly what CERCLA attempts to ensure is not silenced, regardless of whether the employee pursues the interest solely for himself and his co-workers. The ALJ’s insistence that, to be protected by CERCLA, Williams express concern for protecting non-DISD employees, the public, or the environment, was too narrow in this case. The environmental hazard, about which Williams sought information, appears to be a potentially large and potentially serious public concern notwithstanding its obvious occupational health and safety implications. The fact question nevertheless remains as to whether Williams subjectively believed he was raising environmental concerns. …

USDOL/OALJ Reporter at 13-14 (footnote omitted).

[Nuclear & Environmental Digest XII D 12 a]
PROTECTED ACTIVITY UNDER TSCA; QUESTIONING MANAGEMENT ABOUT DOCUMENTATION OF CHEMICAL EXPOSURE

In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), Respondent repeatedly objected to the questioning of witnesses or the introduction of documentary evidence that was related to Complainant's concerns about exposure to chemicals at Respondent's facility, on the ground that Complainant's health concerns related only to OSHA and were irrelevant to an environmental whistleblower complaints. One member of the ARB held that these objections lacked merit because Complainant's concerns relating to company records concerning his history of chemical exposure related directly to the collection of data that is mandated by the TSCA. The lead opinion wrote "an employee's questioning of management regarding the documentation of his or her complaints about health problems that the employee believes are related to chemical exposure is linked directly to the records that are required to be kept under [TSCA] Section 8(c)."

PROTECTED ACTIVITY; SECRET TAPE RECORDINGS
[N/E Digest XII D 12 a]

In Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995), the Secretary held that the Complainant engaged in protected activity under the ERA by making lawful tape recordings that constituted evidence gathered in support of a nuclear safety complaint. Such tape recording are analogous to other evidence gathering activities that are protected under employee protection provision, such as making notes and taking photographs that document environmental or safety complaints. The Secretary rejected the ALJ's conclusion that the scope and duration of the recording removed it from protection, and the Respondent's attempt to justify the Complainant's discharge on the ground that he could not be an effective manager once other employees learned of his tape recordings.

XII D 12 a Egregious behavior of complainant

In Mosbaugh v. Georgia Power Company, 91-ERA-1 & 11 (ALJ Oct. 30, 1992), the Respondent placed the complainant on leave and ultimately discharged him after learning that the complainant had made hundreds of hours of covert tape recordings at the work site. The ALJ found that "assuming [the complainant's] tape recording activity was protected at the outset, its continuation and scope became so egregious and potentially disruptive to the workplace that it lost any protected status it may have once possessed." The ALJ noted the similarity between this case and Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), in which the complainant had misappropriated confidential company records.

XII D 12 a Particular activities; efforts to obtain information

An inspector's efforts to obtain information needed to identify quality problems is protected; however an employee is not free to choose the precise manner in which to seek necessary information. A rule requiring permission from a superior is not on its face unreasonable. In the instant case, it was not unreasonable for the Secretary to conclude that the employee was not engaged in protected activity when he left his work area -- purportedly to conduct industry code research -- without permission, where the employer offered a plausible business reason for the rule requiring permission to be away from a work station: the need to ensure adequate QCI coverage so that production could continue. Lockert v. United States Dept. of Labor, 867 F.2d 513, 518 (9th Cir. 1989).

XII D 12 a Advancement of policies of Act

A Complainant's activities aimed at discovering and removing asbestos hazards from school buildings were protected under the Toxic Substances Act, 15 U.S.C. § 2622, since these efforts fostered and advanced the underlying policies of the Act, constituted "action to carry out the purposes of" the Act within the meaning of section 2622(a)(3). Hanna v. School District of the City of Allentown, 79-TSC-1 (Sec'y July 28, 1980), reversed on other grounds, School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).

XII D 12 a Taking of photographs is a protected activity

In Richard Adams v. Coastal Production Operations, Inc., 89-ERA-3, the Complainant worked for Respondent as a boat operator on an as needed basis. Upon witnessing an oil spill while on duty, Complainant objected to a foreman. When the pump causing the spill continued to discharge oil, the Complainant borrowed a camera and photographed the pumping operation. The Complainant's supervisor later asked for the camera and ordered the Complainant to leave the job site. The Complainant notified the president of the Respondent business as well as the coast guard. The following day, the president phoned the Complainant and chastised him for taking the photographs of the oil spill and using the boat's radio to call the Coast Guard.

The Secretary held that the Complainant's photographing of the oil spill was protected activity since "Complainant objected orally and openly took photographs, further demonstrating to supervisors on the scene his objection to the spill. In the context of this case, taking the pictures was an aspect of Complainant's objection and thus was protected." (Sec'y Aug. 5, 1992).

XII D 12 b Employee who discovers safety violation outside course and scope of his employer; not a distinguishing factor

In Helmstetter v. Pacific Gas & Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993) (arising in the 9th Circuit), the complainant (an employee of the respondent's marketing department) heard about an oil spill concerning the respondent's equipment at a client's site, and without instruction, went to investigate. The site was not one of his marketing accounts. The complainant noticed problems with the clean up and got some of the spilled substance on his hands and clothing. Later that day the complainant informed responsible officials employed by the respondent about the spill.

The ALJ held that the complainant was acting outside the course and scope of his employment when he investigated the spill and that Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), did not apply to protect the complainant's internal complaint. The Secretary, however, held that Mackowiak does not limit its ruling protecting internal complaints to nuclear plant quality control inspectors, whose every action "occurs in an NRC proceedings, and cited Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y Apr. 27, 1987), slip op. at 6-7, and Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987), slip op. at 11.

In addition, neither the TSC, 15 U.S.C. § 2602, nor the SWD, 42 U.S.C. § 6903, includes a special definition for the term "employee." Thus, there is no statutory basis to limit the protection of the acts' whistleblower provisions to those employees who discover and complain about a potential statutory violation in the course of their official duties. Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990), slip op. at 9-12 (internal complaints of warehouse foreman protected under TSC). To so limit coverage would hobble the intended broad protection of whistleblower provisions, contrary to court interpretations. See, e.g., Mackowiak, 735 F.2d at 1163 (whistleblower provision of the ERA and similar statutory provisions "share a broad, remedial purpose of protecting workers from retaliation based on concerns for safety and quality"); Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986) ("a narrow hypertechnical reading of the [ERA whistleblower provision] will do little to effect the statute's aim of protection"). See also Hill & Ottney v. Tennessee Valley Authority, 87-ERA-23 and 24 (Sec'y May 24, 1989), slip op. at 4.

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

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; A COMPLAINANT'S CONDUCT CAN BE PROTECTED PROVIDED THAT THE COMPLAINANT HAD A REASONABLE BELIEF THAT THERE WOULD BE A VIOLATION OF THE SWDA OR OTHER PERTINENT LAWS, AND THAT THE CONDUCT WAS TAKEN PURSUANT TO THE COMPLAINANT'S EMPLOYMENT AUTHORITY OR WAS OTHERWISE WITHIN THE RIGHTS AFFORDED EMPLOYEES UNDER THE SWDA

In Lee v. Parker-Hannifin Corp., Advanced Products Business Unit, ARB No. 10-021, ALJ No. 2009-SWD-3 (ARB Feb. 29, 2012), the Complainant was an Environmental Health and Safety Coordinator at the Respondent's Advanced Products Business Unit. In response to a concern raised by the state environmental protection agency, the Complainant raised concerns with the highest ranking official at the facility that the Respondent's hazardous waste treatment from one evaporator was possibly non-compliant with federal and state regulations. Management informed the Complainant that it would schedule a meeting in about three weeks to discuss the matter. Two days later, the Complainant informed the official that he was "ordering" that the evaporator be shut down. Later that day the official informed the Complainant that he did not have the authority to shut down the evaporator, instructed him not to do so, and informed him that the company would investigate his concerns. Several days later, the Complainant shut down the evaporator and placed a padlock on it. That same day the Respondent began an investigation. The investigation found the Complainant's allegations to be without merit. The Complainant was then terminated because he shut down the evaporator.

The ALJ granted summary decision dismissing the Complainant's SWDA whistleblower complaint. The ALJ concluded that the undisputed facts established that the Complainant was not engaged in protected activity when he shut down the evaporator. On appeal, the ARB vacated the grant of summary decision and remanded for further proceedings. The ARB described in detail its holding that conduct can be afforded whistleblower protection provided that the complainant can demonstrate that he had a reasonable (objective and subjective) belief that there would be a violation of the SWDA and/or pertinent environmental laws, and that his conduct was either taken pursuant to his employment authority or otherwise was within the rights afforded employees under the SWDA.

The ARB looked to the language of the SWDA and relevant caselaw to find that protected activity is interpreted expansively under the SWDA. The ARB noted that it had previously found that conduct can constitute protected activity under the SWDA and other whistleblower laws. Such conduct has been found to include airline pilots who refuse to certify a plane as airworthy, taking photographs, making secret tape recordings, performance of quality control and quality assurance functions, and refusal to work.

The ARB noted that under the SWDA, the concern is external to the employee and focuses on environmental purposes. Thus, to secure the protection of the SWDA, actions of an employee whether in the form of a complaint, participation in an investigation, or conduct, must be reasonably be perceived by the employee as furthering the SWDA's purposes.

The ARB found that the ALJ's reliance on several decisions was misplaced. Harrison v. A.R.B., 390 F.3d 752 (2d Cir. 2004), an STAA case, did not stand for the proposition that there is a distinction between safety complaints and conduct. Rather, the decision holds that the STAA may not necessarily protect an employee who engages in unauthorized conduct. Consolidated Coal v. Marshall, 663 F.2d 1211 (3d Cir. 1981), a FMSHA case, did not stand for the proposition that conduct is never protected. Rather, conduct is protected only if it is within the rights of the complainant to take, provided that the complainant "has a reasonable good faith belief that his conduct is in furtherance of the purposes of the act under which he seeks protection. " Lee, ARB No. 10-021, USDOL/OALJ Reporter at 11. The ARB acknowledged that in Sievers v. Alaska Air, ARB No. 05-109, ALJ No. 2004-AIR-028 (ARB Jan. 30, 2008), it was held that AIR21-protected activity requires more than aggressively carrying out one's duties for ensuring air safety. Rather, the complainant must communicate his or her concerns to management. Nonetheless, the ARB found that the conduct in Sievers for which AIR21 whistleblower protection was afforded – a pilot's decision, acting within the scope of his authority, to place an airplane out of service because of safety concerns – is functionally no different from the Complainant's conduct at issue in the present case.

The ARB summarized:

   While an employee's authority (or lack thereof) is not necessarily determinative of whether particular speech or conduct is protected –– it is a factor in assessing the objective reasonableness of an employee's belief that his conduct is in furtherance of the purposes of the whistleblower act under which he seeks protection. An employee may exceed his authority and thereby take his conduct outside of the protection afforded by the statute. "That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints." Garn v. Benchmark Techs., No. 1988-ERA-021, slip op. at 4 (Sec'y May 18, 1995). On the other hand, an unauthorized act may, under certain circumstances, be protected under the whistleblower statutes. The Secretary has concluded that the operative determination of whether intemperate or insubordinate (unauthorized) behavior may be eligible for protection requires a balancing of interests: "[t]he right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts." Kenneway v. Matlack, Inc., No. 1988-STA-020, slip op. at 3 (Sec'y June 15, 1989). Determining whether conduct is protected can thus turn on the objective reasonableness of an employee's belief of a violation, which can be affected by the extent of his/her professional authority to even make such a decision. Even unauthorized conduct may be protected as long as it is lawful and "the character of the conduct is not indefensible in its context." Id.

   This balancing of interests to determine whether an employee's unauthorized actions are defensible is, in our view, simply another way of arriving at a determination of the objective reasonableness of an employee's belief that his actions were protected. These analyses turn on the distinctive facts of each case.

Lee, ARB No. 10-021, USDOL/OALJ Reporter at 11-12 (emphasis as in original) (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; REFUSAL TO HIRE; PRIOR WHISTLEBLOWER COMPLAINTS

In Saporito v. Exelon Corp., ARB No. 10-049, ALJ No. 2009-ERA-10 (ARB Sept. 30, 2011), the Complainant alleged that the Respondents retaliated against him when they refused to hire him for any of six positions for which he applied because they knew from his resume that his employment relationship with some of his previous employers had been terminated because he had raised safety concerns with the NRC regarding operations at those employers' nuclear plants. The ARB found, however, that the Complainant failed to point to sufficient information in the record to support a factual finding that he had engaged in protected activity. The ARB noted that it was of public record in court decisions that the Complainant had been terminated for cause by one of the prior employers, and that he had admitted in another case involving that employer's refusal to rehire that he was not eligible for rehire because of the previous termination for cause. The ARB also noted that although the Complainant had alleged in his resume that he had been terminated by two other employers for filing safety complaints, both of the ERA whistleblower complaints relating to those employers had been settled without any findings regarding whether the Complainant had engaged in protected activity. The ARB found the instant complaint to be without merit and frivolous.

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; TEMPORAL PROXIMITY; IN FAILURE TO REHIRE CASE, PROTECTED ACTIVITY SHOULD VIEWED AS CONTINUING DURING LITIGATION OF ORIGINAL WHISTLEBLOWER COMPLAINT

In Bobreski v. J. Givoo Consultants, Inc., ARB No. 09-057, ALJ No. 2008-ERA-3 (ARB June 24, 2011), the Complainant had been terminated by the Respondent from employment in 1999 shortly after the Complainant reported some safety concerns. The Complainant filed a whistleblower claim in 1999 against the Respondent's contractor (District of Columbia Water and Sewer Authority or "WASA"). The Complainant obtained a liability verdict in July 2005 against WASA, which was still contracting with the Respondent in 2006. The remedies portion of the case was not resolved until September 2006.

Meanwhile, in early 2006, the Complainant - who was well qualified - applied for a temporary job opening with the Respondent, but was not selected. The Complainant filed the instant whistleblower complaint. The ALJ found a lack of a causal link between protected activity and the decision not to hire him. On appeal, the ARB found that the ALJ erred by too narrowly defining the protected activity as the discrete disclosures that had occurred in 1999, causing the ALJ to view the temporal proximity as a seven-year gap. The ARB found that the failure to hire fell in between the ALJ's liability ruling in the WASA claim and the settlement of that case in 2006. The ARB stated in a footnote that filing of, and litigation of, a whistleblower complaint before DOL is itself protected activity. The ARB noted that the Respondent had a long term contract with WASA, and that the Respondent had been implicitly involved with the ALJ's attempt to sort out remedies for the Complainant's earlier whistleblower complaint against WASA.

[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; RECOMMENDATION TO CONSULT WITH THE NRC NOT SHOWN TO IMPLICATE NUCLEAR SAFETY

In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had been tasked with evaluating two interim compensatory measures that might be taken if needed if tests showed that radiation contamination could leak into control rooms. In discussing a draft position paper with a supervisor, the Complainant recommended that the Respondent consult with the NRC on the use of "alternative radiation source term" (AST) calculation and explain the Respondent's position that it is permissible for nuclear plants. The recommendation was rejected because the supervisor believed it was unnecessary to consult with the NRC on the matter and because it was company policy not to use the NRC as a consultant. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB stated that the Complainant's burden to survive summary judgment was to produce some evidence that he reasonably believed that consulting with the NRC about using AST was in some way necessary to insure safety at Nine Mile Point or that not consulting would violate the ERA, the AEA, or their implementing regulations. The Complainant, however, adduced no such evidence.

[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; RECOMMENDATION TO DISCUSS WITH THE NRC A FAILURE TO FOLLOW REGULATORY PROCEDURE FOR SUBMISSION OF LICENSE AMENDMENTS FOUND NOT TO BE PROTECTED ACTIVITY

In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had recommended that the Respondent discuss with the NRC an alleged informal communication of calculations used to support a license amendment five years earlier and the NRC's failure to place the communication in the public docket. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB affirmed the ALJ's grant of that motion because nothing in the record informed how this recommendation implicated safety. The ARB also affirmed grants of summary decision on two other concerns the Complainant had raised about internal procedures for preparing a report and for submitting changes to a license amendment request where the record failed to reveal how those concerns related to nuclear safety.

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; SOCIO-ECONOMIC CONCERNS NOT RELATING TO ENVIRONMENTAL HEALTH AND SAFETY ARE NOT COVERED UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS

In Santamaria v. U.S. Environmental Protection Agency, ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the Complainant did not engage in protected activity under the environmental whistleblower laws where the concerns he raised related only to EPA's alleged failure to assure that that Minority Business Enterprise and Women-Owned Business Enterprises legal requirements were being complied with by EPA contractors. The ARB found that these concerns raised related to socio-economic matters rather than environmental health and safety issues.

XII D 13 Refusal to sign release

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.

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; FILING A WHISTLEBLOWER COMPLAINT

Filing a whistleblower complaint is quintessential protected activity. Talking about such a complaint with the news media and a federal agency is also protected activity. Erickson v. U.S. Environmental Protection Agency, ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006).

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT DESTRUCTION OF E-MAIL RECORDS

In Erickson v. U.S. Environmental Protection Agency, ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant wrote a letter to a Congressman alleging that EPA was destroying e-mail records so that it would not have to provide them to FOIA requesters. The ALJ found that the Complainant did not make a showing of what information was on the backup e-mail tapes or how the destruction of such information specifically violated the environmental laws. Nonetheless, the ALJ concluded that the nature of such records, by virtue of their being EPA e-mail records, preponderated in favor of a finding that some of the records would relate to concerns about environmental containments, and therefore the letter to the Congressman was protected activity. The ARB rejected this logic, finding that it "greatly extends controlling precedent that the employee's concerns must be reasonably related to a violation of the environmental acts or a specific environmental threat." USDOL/OALJ Reporter at 17. The ARB found that the letter was not protected activity.

[Nuclear and Environmental Whistleblower Digest XII D 13]
WHISTLEBLOWER STATUS DOES NOT ENTITLE A COMPLAINANT TO DISPENSATION IN REGARD TO PERFORMANCE STANDARDS

The fact that a complainant was a whistleblower does not entitle him to dispensation in regard to performance standards. Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007). PDF | HTM

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; GOVERNMENT EMPLOYEE PERFORMING JOB DUTIES RELATED TO THE ENVIRONMENT

In Sasse v. USDOL, No. 04-3245 (6th Cir. May 31, 2005) (case below ARB No. 02-077, ALJ No. 1998-CAA-7), the Sixth Circuit held that an Assistant U.S. Attorney could not state a claim under the whistleblower provisions of the CAA, SWDA, and FWPCA premised on his investigation and prosecution of environmental crimes because he was merely performing his assigned job duties. The court cited the reasoning of Willis v. Dept. of Agriculture, 141 F.3d 1139, 1145 (Fed. Cir. 1998), a case arising under the Whistleblower Protection Act, as equally applicable to the whistleblower provisions at issue in Sasse. Essentially, the whistleblower provisions protect those who risk their job security by taking steps to protect the public good; an employee who is merely performing duties required of him in a job cannot be said to have risked his personal job security, and has not engaged in protected activities.

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; STATE LAW AUTHORIZED BY THE FEDERAL SWDA

In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the ARB rejected the Respondent's assertion that the federal environmental whistleblower acts do not apply to conditions regulated by states, where the state's Solid and Hazardous Waste Act was a state SWDA plan that the federal SWDA authorized.

[Nuclear and Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; THE SWDA COVERS BOTH ENVIRONMENTAL AND OCCUPATIONAL SAFETY

In Hall v. United States Army Dugway Proving Ground, ARB Nos. 02-108 and 03-013, ALJ No. 1997-SDW-5 (ARB Dec. 30, 2004), the Complainant had filed a written complaint about skin contact with objects contaminated with SWDA-related hazardous chemicals. The ARB rejected the Respondent's contention that this was not protected activity because the SWDA does not cover skin contact. The Board wrote that "Hazards relating to skin contact are occupational safety hazards. SWDA deals with environmental and occupational safety. 42 U.S.C.A. § 6971(f)." Slip op. at n.4.

[Nuclear & Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; ALTHOUGH PROSECUTOR'S WORK PROSECUTING ENVIRONMENTAL CRIMES IS NOT PROTECTED ACTIVITY PER SE, BOARD LEAVES OPEN POSSIBILITY THAT SUCH ACTIVITY COULD BE CONSIDERED SUCH

In Sasse v. Office of the U.S. Attorney, USDOJ, ARB No. 02 077, ALJ No. 1998 CAA 7 (ARB Jan. 30, 2004), the ALJ erred in relying on decisional law under the whistleblower protection provision of the Civil Service Reform Act, 5 U.S.C.A. § 2302(b)(8)(A) (West 1996) in determining whether an Assistant U.S. Attorney's (AUSA) work as a prosecutor was protected activity. The ARB concluded that the environmental whistleblower protection provisions are significantly broader in scope than the CSRA provision. The ARB disagreed with the Complainant's proposition that work prosecuting environmental crimes is protected activity per se, and that his management's disagreements on case prosecution should be deemed actionable interference. As addressed in another section of the decision, the ARB determined that it would not review the prosecutorial decisions of a AUSA's supervisors, and therefore the Complainant's claims could not be predicated on his employment status alone (although this was not wholesale immunity from charges that DOJ took discriminatory acts because the AUSA was engaged in statutorily protected activities). The Board declined to draw a fixed line between protected and unprotected acts in the case because the whistleblower's complaint failed for a variety of other reasons. Thus, the Board assumed, without deciding, that Complainant's work on environmental crimes was protected activity.

[Nuclear & Environmental Whistleblower Digest XII D 13]
PROTECTED ACTIVITY; REPORT OF PURPORTED EX PARTE COMMUNICATION

In Greene v. Environmental Protection Agency, 2002 SWD 1 (ALJ Feb. 10, 2003), the Complainant was an ALJ with the EPA. In her complaint, she alleged that she engaged in protected activity when she reported to the parties in a SWDA matter pending before her that the Chief ALJ of EPA had engaged in a conversation about the case with the supervisory attorney in EPA's Region III office in which the Chief ALJ exhorted the regional office to either aggressively pursue settlement or progress to hearing because the case was unduly overage.

The ALJ who presided over the instant complaint for DOL found that Complainant did not engage in protected activity under the SWDA because the EPA Chief ALJ's communication was not an ex parte communication as the EPA Chief ALJ was not the presiding judge and had no decisional authority in the case, and the supervisory attorney was not representing EPA in the case, and because no substantive or important procedural matters were discussed. Moreover, the Complainant was informed about the Chief ALJ's intention to have the discussion, the Chief ALJ provided a memorandum to Complainant recording the substance of the discussion, and the record did not show that anyone thought the discussion was improper at the time. The ALJ found that Complainant, as an experienced ALJ, undoubtedly knew that such a conversation was not an improper ex parte communication. Finally, the ALJ found that the complaint did not demonstrate that the conversation had the potential to affect, or did affect the purposes of the SWDA. Accordingly, summary judgment on this issue was granted to Respondent.

[Nuclear & Environmental Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT FAIRNESS OF PERFORMANCE EVALUATION

In Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), the ARB adopted the ALJ's holding that Complainant's complaint to his employer about the fairness of his performance evaluation was not protected activity within the meaning of the ERA whistleblower provision because it did not relate to the health and safety purposes of the ERA.

[Nuclear & Environmental Digest XII D 13]
PROTECTED ACTIVITY; COMPLAINT ABOUT INSUFFICIENT FUNDING

In Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July 13, 2000), the ALJ recommended a ruling that Complainant did not engage in protected activity by complaining to his supervisors that insufficient and ineffective resources had been provided to assist him in developing an NRC examination for individuals to be entrusted with running a nuclear power plant. The ALJ found the question to be a "very close call," considering the mandate to construe liberally the definition of protected activity, but found that under circumstances Complainant's belief of a violation of the underlying nuclear protection law was not factually reasonable.

[N/E Digest XII D 13]
PROTECTED ACTIVITY; PROVIDING DOCUMENTATION FOR ANOTHER'S COMPLAINT

In Paynes v. Gulf States Utilities Co., 93-ERA-7 (ALJ Dec. 3, 1997), the ALJ recommended a holding that Complainant's documentation of a safety concern that was raised by another employee is sufficient to constitute protected activity under the ERA.

[N/E Digest XII D 13]
PROTECTED ACTIVITY; FILING OF PRICE-ANDERSON ACT CIVIL ACTION

A Price-Anderson Act civil action is a "proceeding" under the "Atomic Energy Act, as amended" within the meaning of Section 211 of the ERA, and therefore falls within its protective ambit. McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997).

[N/E Digest XII D 13]
PROTECTED ACTIVITY; GOSSIPING

In Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997), the ALJ had concluded that Complainant's actions in relating, in an unofficial conversation with an NRC inspector, rumors about a personal relationship between a management official and a state or federal nuclear inspector, and the alleged stagging of an equipment failure by the management official, were undeniably in poor judgment and were unrelated to any protected activity on the part of Complainant.

The ARB noted that "[i]n view of the overriding importance of encouraging communications by employees with the NRC regarding safety-related matters, we are reluctant to agree with the ALJ that [Complainant's] remarks to [the NRC inspector] were unprotected or that [Employer's] dissatisfaction with [Complainant's] exercise of judgment in that instance is wholly unrelated to activity that is protected by the ERA." The ARB, however, did not render a holding on this issue because there was clear and convincing evidence that Complainant would have been terminated from employment even in the absence of his protected activity (and even assuming that the relating of rumors in the present context was protected activity).

[N/E Digest XII D 13]
PROTECTED ACTIVITY; PERSONNEL DISPUTE

In Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7 (ARB Feb. 13, 1997), Complainant became involved in an internal EPA personnel matter during a period on which he was "on-loan" to the Commonwealth of Kentucky as a coordinator on environmental studies relating to several geographic areas of the state. Complainant attempted to obtain the assistance of a certain EPA expert involved in the personnel matter.

The Board, although not reaching the issue, expressed doubt that this was protected activity on the part of Complainant. The Board stated that "[a]bsent a showing that [the expert] possessed some truly unique abilities or insights without which the geographic initiatives would have been significantly impaired, fighting a personnel battle over the assignment of a specific employee to a particular project is probably too remote from protection of the environment to be protected under the Acts." Slip op. at 5 n3 (citation omitted).

FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS; EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]

In Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Complainant was assigned to investigate an EPA employee regarding alleged improprieties in the awarding and administration of a computer modeling contract to study the effects of acid rain. The Complainant alleged in his CAA complaint that his supervisors gave him directions that constituted interference in the investigation, and that the EPA Inspector General had disregarded the Complainant's recusal from the investigation and forced him to lead the investigation. The ALJ concluded that the CAA whistleblower complaint did not state allegations related to the environmental safety or violations of the CAA, and recommended dismissal of the complaint. The Board observed that this was analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Board, citing Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's employee protection provision is construed broadly, and that the Complainant's allegations of protected activity met that broad construction and may constitute protected activity. For instance, the Complainant could establish that the alleged interference with the investigation would lead the EPA to rely on acid rain studies that understate the harmful effects of acid rain, leading to less than appropriate regulation. The Board also found that the Complainant stated the other elements of a prima facie case, and therefore remanded for a hearing.

The Board noted that the Complainant also complained that interference by his EPA managers may have violated the civil service laws or the Inspector General Act. The Board stated that "[t]he allegation of a violation of other statutes does not defeat the claim under the employee protection provision [of the CAA]." Slip op. at 9.

FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS; EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]

In Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Complainant was assigned to investigate an EPA employee regarding alleged improprieties in the awarding and administration of a computer modeling contract to study the effects of acid rain. The Complainant alleged in his CAA complaint that his supervisors gave him directions that constituted interference in the investigation, and that the EPA Inspector General had disregarded the Complainant's recusal from the investigation and forced him to lead the investigation. The ALJ concluded that the CAA whistleblower complaint did not state allegations related to the environmental safety or violations of the CAA, and recommended dismissal of the complaint. The Board observed that this was analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Board, citing Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's employee protection provision is construed broadly, and that the Complainant's allegations of protected activity met that broad construction and may constitute protected activity. For instance, the Complainant could establish that the alleged interference with the investigation would lead the EPA to rely on acid rain studies that understate the harmful effects of acid rain, leading to less than appropriate regulation. The Board also found that the Complainant stated the other elements of a prima facie case, and therefore remanded for a hearing.

The Board noted that the Complainant also complained that interference by his EPA managers may have violated the civil service laws or the Inspector General Act. The Board stated that "[t]he allegation of a violation of other statutes does not defeat the claim under the employee protection provision [of the CAA]." Slip op. at 9.

XII D 13 Refusal to testify in another ERA proceeding according to outline prepared by the respondent

Where the Complainant attended a pre-hearing session as a prospective witness for the Respondent in another whistleblower case, and in effect refused to testify to facts as stated in a proposed outline of testimony which he believed to be false, the Complainant engaged in protected activity under the ERA.
Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995).

XII D 13 PROTECTED ACTIVITY; PERSONNEL ISSUE

In order to prevail in an environmental whistleblower case, the complainant must first show that he or she engaged in protected activity. In Fugate v. Tennessee Valley Authority, 93-ERA-9 (Sec'y Sept. 6, 1995), the complaint was dismissed because the Complainant neither pled nor presented any evidence from which one could conclude that he engaged in protected activity within the meaning of the environmental whistleblower provisions. The Complainant made an internal complaint regarding a personnel issue (the hiring of "outside" fire fighters), not a safety concern.

XII D 13 Protected activity; lack of freon recovery system when refrigeration equipment is repaired

A complainant sufficiently alleges protected activity for purposes of a motion to dismiss based on failure to state a claim upon which relief may be granted by asserting that he or she had made complaints to the EPA concerning the lack of a freon recovery system for use when refrigeration equipment is repaired. Jackson v. The Comfort Inn, Downtown, 93-CAA-7, slip op. at 3-4 (Sec'y Mar. 16, 1995). Studer v. Flowers Baking Company of Tennessee, Inc., 93- CAA-11 (Sec'y June 19, 1995).

XII D 13 Bypassing the company's chain of command to speak directly to EPA

An employee who bypasses the company's chain of command to speak directly with the EPA about possible violations of environmental laws may be protected under the CAA. The employer has an opportunity, however, to establish that it legitimately would have fired the complainant for refusing to notify it of a safety problem. Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995) (Complainant alleged that he was discharged for insubordination because he did not bring allegations of noncompliance immediately to management's attention and for refusing to provide a notebook containing observations of alleged violations of environmental laws).

XII D 13 Picketing or protest activity may be protected activity

In Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), the Secretary assumed for the purposes of the decision that picketing or "protest" activity, which is designed to inform the Respondent and the public of the complainant's belief that the Respondent was committing safety violations, is protected activity. Citing Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1137 (5th Cir. 1981).

XII. D. 13. Legal fiction; activity that Complainant denies having done may constitute protected activity if Respondent's belief was that it was protected activity

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

On review, the Secretary considered whether the telephone call itself was protected activity since it was made to a state department of water resources regarding a refinery and the potential for that agency to sue Respondent.

The ALJ held that the call was not protected because Complainant denied making it and there was not enough information in the record about "the substance of such contact to support a finding that it constituted protected activity." The Secretary stated, however, that the focus should be on Respondent's perception of Complainant's activity and whether Respondent was motivated by its belief that Complainant had contacted a state agency.

The Secretary held that although it was clear that Respondent believed Complainant did make the call to the state agency, it is difficult to separate out his motivation with respect to the call: if Respondent's asserted reason for being upset was true - - failure to keep colleagues informed about a potential lawsuit - - the telephone call would not be protected activity: If, however, Respondent was upset simply because Complainant contacted a state agency concerning one of Respondent's facilities, the call would be protected activity.

The Secretary concluded, however, that based on the record presented, it could not be determined whether the protected aspects of Complainant's phone call motivated Respondent. Therefore, coverage was based solely on the internal report.

[Editor's note: This case arose in the Fifth Circuit in which internal complaints are not recognized as protected activity. The Secretary had invited the Fifth Circuit to reconsider this position in an earlier decision in the same case. This alternative ruling, therefore, is important because if the Fifth Circuit maintains its position on internal complaints, Complainant will have no protected activity to base his complaint upon.

Although the ERA was amended in 1992 to include internal complaints as protected activity, this is not an ERA case, so it is unclear what the Fifth Circuit will do with this issue if an appeal is taken.]

XII D 13 Going to NRC first

An employer violates the employee protection provision of the ERA when it takes adverse action against an employee for violating a stated policy of urging employees to bring complaints to management before going outside the NRC. Rainey v. Wayne State University, 89-ERA-48 (Sec'y Apr. 21, 1994) (in the case sub judice, however, there was no allegation that Complainant was removed for failure to follow this policy).

XII D 13 Internal complaints; miscellaneous

Protected activity includes such internal complaints as

  • a complaint about a failure to provide the Complainant with an operations manual

  • a refusal to sign statements verifying attendance at non-existent meetings

  • an objection to working with a co-worker who had committed three known safety violations

  • a complaint about improper use of radioactive isotopes to x-ray a mouse

  • a threat to tell NRC investigators about the incidents.

Seal v. The American Inspection Co., 92-ERA-6 (Sec'y Mar. 17, 1995), amended (Sec'y Mar.24, 1995) (Complainant, however, failed to carry his ultimate burden of proof).

XII D 13 Reporting of mishandling of materials by student

A complaint or charge concerning quality or safety communicated to management or the NRC is protected under the ERA. McDonald v. University of Missouri, 90-ERA-59 (Sec'y Mar. 21, 1995) (complainant to university management about the mishandling of radioactive materials by a graduate student).

XII D 13 Complaining to other workers; federal prison setting

In Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec'y Mar. 17, 1995), the Secretary held that a prisoner who discussed complaints about exposure to toxic chemicals within earshot of other prisoners was not engaged in protected activity, stating that the cases are clear that an employer may take action against an employee for improper conduct in raising otherwise protected complaints. The Secretary limited his holding to a prison setting, stating that "[i]n ordinary employment surroundings, the fact that a co-worker overheard a whistleblower making or discussing his safety complaint would not, without more, deprive him of protection under TSCA."

XII D 13 Protected activity; Exceeding the channels of communication distinguished from bypassing the channels of communication

In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (ALJ Jan. 19, 1995), the ALJ distinguished decisions indicating that employees engage in protected activity when bypass the chain of command or go around established channels when bringing forth environmental concerns. In the other decisions, the employee either expressed no environmental concerns to the employer, or bypassed a supervisor or the respondent altogether. In the instant case, the Complainant reported the problem to the Respondent, but went beyond those channels when she disagreed with the Respondent's method of dealing with the problem.

XII. D. 13. Legal fiction; activity that Complainant denies having done may constitute protected activity if Respondent's belief was that it was protected activity

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), Respondent fired Complainant as one of its in-house attorneys for failing to report a telephone call to a state agency and lying about it when asked by his supervisor; the ALJ found after a hearing that Respondent fired Complainant both because of his lie about the phone call and because of Complainant's internal memorandum on Respondent's violations of the environmental laws.

On review, the Secretary considered whether the telephone call itself was protected activity since it was made to a state department of water resources regarding a refinery and the potential for that agency to sue Respondent.

The ALJ held that the call was not protected because Complainant denied making it and there was not enough information in the record about "the substance of such contact to support a finding that it constituted protected activity." The Secretary stated, however, that the focus should be on Respondent's perception of Complainant's activity and whether Respondent was motivated by its belief that Complainant had contacted a state agency.

The Secretary held that although it was clear that Respondent believed Complainant did make the call to the state agency, it is difficult to separate out his motivation with respect to the call: if Respondent's asserted reason for being upset was true - - failure to keep colleagues informed about a potential lawsuit - - the telephone call would not be protected activity: If, however, Respondent was upset simply because Complainant contacted a state agency concerning one of Respondent's facilities, the call would be protected activity.

The Secretary concluded, however, that based on the record presented, it could not be determined whether the protected aspects of Complainant's phone call motivated Respondent. Therefore, coverage was based solely on the internal report.

[Editor's note: This case arose in the Fifth Circuit in which internal complaints are not recognized as protected activity. The Secretary had invited the Fifth Circuit to reconsider this position in an earlier decision in the same case. This alternative ruling, therefore, is important because if the Fifth Circuit maintains its position on internal complaints, Complainant will have no protected activity to base his complaint upon.

Although the ERA was amended in 1992 to include internal complaints as protected activity, this is not an ERA case, so it is unclear what the Fifth Circuit will do with this issue if an appeal is taken.]