DIVISION XVI -- DAMAGES AND REMEDIES
SUBDIVISION G -- ABATEMENT AND OTHER RELIEF
XVI. Damages and remedies
* * *
- G. Abatement and other relief
[N/E Digest XVI G 1]
In Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB Apr. 20, 1998), the ALJ in her recommended decision had directed release of the DOL decisions in the matter without comment to the press. The ARB, although affirming the ALJ's finding on the merits, rejected this recommendation, finding that it "has no authority to prohibit comment by Respondent, or its attorney, to the media expressing their opinions of either the ALJ's Recommended Decision and Order or this Final Decision and Order." Id . @ 9-10.
In McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993), Respondent was ordered to expunge from its records all memoranda or reference to a reprimand which had been found to be in violation of the FWPCA's whistleblower provision, to post written notice for 30 days advising its employees that the reprimand had been expunged and that he has been reinstated to his former position, and to pay Complainant's costs and expenses.
[Nuclear and Environmental Whistleblower Digest XVI G 2 a]
POSTING; ORDER TO POST RESCINDED WHERE SUCH RELIEF WOULD NOT BE EFFECTIVE
In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB rescinded an earlier order requiring a putative successor company to post copies of the ARB's decision at its nuclear operations. Respondent argued that it had been sold, and the putative successor company never reentered the decontamination business thus rendering a posting requirement unnecessary and ineffective. Complainant argued that this was a mis-characterization, and that the putative successor company still regularly employees decontamination technician contractors.
The ARB declined to engage in an analysis of whether the putative successor company meets the criteria for liability as a successor corporation given that the litigation had already been prolonged and that Respondent had offered to post a supersedeas bond to secure payment of damages. In regard to the posting requirement, the ARB found that it was no longer a practical remedy to require the putative successor corporation to post, or even to impose an alternative publication in a general circulation newspaper as was required in Smith v. Esicorp, Inc ., ARB No. 97-065, ALJ No. 1993-ERA-16 (ARB Aug. 27, 1998). The ARB, however, affirmed its order to require Respondent itself to post the decision at its own facilities.
[Nuclear & Environmental Digest XVI G 2 a]
INJUNCTIVE RELIEF; POSTING OF DECISION; REMEDY IF POSTING NO LONGER POSSIBLE
In Smith v. Esicorp, Inc. ,1993-ERA-16 (ARB Aug. 27, 1998), Respondent was ordered to post, for a period of 90 days, the ARB's decision, and an earlier Secretary of Labor remand decision, in a lunchroom and another prominent place, accessible to employees at the nuclear facility where Complainant was subjected to harassment. Respondent represented that it is no longer in business, has no presence at the nuclear plant and would have no way of assuring that the order for posting the decision can be carried out. Complainant moved to add Raytheon Corporation as a party respondent, asserting that Raytheon succeeded to all of Respondent's property and personnel at the plant. Complainant only sought to add Raytheon as a party for purposes of affirmative and injunctive relief.
The ARB concluded that it would not serve any useful purpose to reopen the record and take evidence on whether Raytheon meets the tests for successorship liability, only to assure that the posting relief is carried out. The ARB stated that "[t]he purpose of posting is to provide notice that whistleblowers will be protected if they are discriminated against. If [Respondent] is unable to secure posting . . . at the . . . nuclear plant, notification may be accomplished by publishing the two documents in a local general circulation newspaper. Such an order brings this longstanding matter to a close and provides [Complainant] more timely relief.
[Editor's note: The case had been before either the OALJ or ARB since 1994]
REMEDIES; EXPUNGEMENT; POSTING
[N/E DIGEST XVI G 2 a]
In Doyle v. Hydro Nuclear Services , 89-ERA-22 (ARB Sept. 6, 1996), Respondent was ordered to expunge from Complainant's records all derogatory or negative information related to the failure to hire him, to provide neutral employment references, not to divulge any information pertaining to not hiring Complainant or denying him unescorted access to a nuclear facility, and to post the ARB's decision.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; POST-REINSTATEMENT
PERFORMANCE EVALUATIONS AND REFERENCES
[N/E Digest XVI B 3 and XVI G 2 a]
In McNeice v. Northeast Nuclear Energy Co. , 95-ERA-18 and 47 (ARB July 3, 1996), the Board clarified the Secretary's earlier Preliminary Order and Order of Remand, which directed Respondent to correct a 1994 performance evaluation relating to Complainant. The Board stated that the directive only affected that performance evaluation, and not any performance evaluations subsequent to Complainant's reinstatement in 1996. The Board noted, however, that post reinstatement evaluations must not reflect anything other than a fair and accurate evaluation of the Complainant's performance.
In addition, the Board noted that the preliminary order directing Respondent not to give a less than satisfactory reference regarding Complainant, only related to the period up to Complainant's 1996 reinstatement. The Board stated that if Complainant ceases to be employed by Respondent in the future, Respondent is expected to provide a fair and accurate reference of Complainant's performance subsequent to the 1996 reinstatement.
NON-ECONOMIC REMEDIES; ORDER OF EXPUNGEMENT OF PERSONNEL
RECORD SHOULD NOT BE OVERLY BROAD
[N/E Digest XVI G 2 a]
In Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995), the Secretary modified the ALJ's order that the Respondents expunge all derogatory or negative information from the Complainant's personnel records, limiting the expungement to negative references relating to his discharge.
RELIEF; POSTING OF DECISION
[N/E Digest XVI G 2 a]
In Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), the Secretary ordered the Respondent to post on all bulletin board of the Missouri University Research Reactor, where official documents are posted, a copy of his Decision and Order for a period of 60 days, ensuring that it is not altered, defaced or covered.
In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ considered certain affirmative or structural relief requested by the Complainant, such a continuing monitoring of Respondent's operations. The ALJ denied this request because DOE already provides such oversight, though he did recommend that the Secretary serve a copy of the final decision on DOE.
The ALJ did approve other creative forms of relief:
Respondent to post a copy of the Secretary's decision
and order for a period of 60 days and take reasonable steps to
prevent tampering with the posting
- Respondent to send written notification to each witness that retaliation against individuals for testifying is illegal and that if such occurs, a complaint may be filed with the U.S. Department of Labor, giving the procedures. (the ALJ found evidence that the Respondent had been keeping track of the testimony)
[Nuclear & Environmental Digest XVI G 2 b]
In Marcus v. U.S. Environmental Protection Agency , 1996-CAA-3 and 7 (ALJ Dec. 15, 1998), Complainant had been reinstated to a comparable position as the result of a prior DOL whistleblower lawsuit. The ALJ in the instant action found in her recommended decision that Respondent had again violated several environmental whistleblower provisions by "badmouthing" him ( e.g. , in providing negative references to a reference checker), and by isolating him. Complainant sought affirmative relief in the form of a detailed order specifically stating all of the terms of employment that must be undertaken in order to remedy the effects of these adverse actions. The ALJ agreed that a detailed consent agreement or ALJ order would be necessary. She noted that "[i]f the parties had been able to successfully integrate Complainant back into the EPA, the present suit would not have been necessary. Accordingly, I order the parties to attempt to reach a mutually agreeable plan to integrate Complainant back into the agency." The ALJ stated that the following concerns must be addressed: (1) finding a way to allow Complainant to work at the office (Complainant works at home because of allergies; the ALJ noted that although Complainant has an allergic reaction to EPA's present building, testimony indicated that a relocation may be forthcoming); (2) ensuring that Complainant's duties are meaningful; (3) detailing how other EPA employees will be informed of this decision, including postings, meetings, or any other mutually agreeable method; (4) prohibiting "bad mouthing" or otherwise providing information or opinions relating to Complainant that would be potentially damaging to his personal or professional reputation or privacy interests absent good cause; (5) providing training for Complainant's supervisors and other managers as to the prohibition of adverse actions against whistleblowers and for guiding EPA managers in how to deal with situations such as requests for references or for expert testimony.
[N/E Digest XVI G 2 b]
REMEDIES; DENIAL OF ACCESS FLAGS
In McCafferty v. Centerior Energy , 96-ERA-6 (ARB Sept. 24, 1997), the ARB ordered removal of denial of access flags Respondent had placed in the records of several Complainants. The ARB also ordered Respondent to inform other entities to which it had written about denial of access -- another employer and the union local -- that the letter informing them of the denial of access had been ruled unlawful retaliation under the ERA.
PRELIMINARY ENFORCEMENT ORDERS UNDER ERA; TYPES OF RELIEF
[N/E Digest XVI B 3 and XVI G 2 b]
In McCafferty v. Centerior Energy , 96-ERA-6 (ARB July 15, 1996), the ALJ issued a recommended decision and order in favor of Complainants. The Board issued a Preliminary Order directing Respondent to comply with various forms of relief recommended by the ALJ: reinstatement of Complainants in accordance with certain directives by the ALJ; payment of back pay with interest; removal of denial of access flags from the records of all Complainants. The Board indicated that it would supplement the Preliminary Order once the ALJ issued his recommended supplemental decision and order concerning costs and expenses, including attorney's fees.
The ALJ had ordered reinstatement of one Complainant -- who had been denied access to at least one of Respondent's facilities because of falsification of a self-disclosure questionnaire -- be conditioned on compliance with NRC regulations. The ALJ held that if NRC regulations mandated a professional assessment before reinstatement, that Complainant should be given the opportunity to pursue the assessment. McCafferty v. Centerior Energy , 96-ERA-6 (ALJ June 11, 1996).
NON-ECONOMIC REMEDIES; REQUIRING LETTERS TO OTHERS TO CORRECT
[N/E Digest XVI G 2 b]
In Smith v. Littenberg , 92-ERA-52 (Sec'y Sept. 6, 1995), the ALJ ordered the Respondents to write to the NRC and an insurance carrier correcting earlier statements to those entities. The Respondents complained on appeal that this order was improper and humiliating. The Secretary found the ALJ's order to be a proper correction of the record.
In Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y June 20, 1994) (preliminary order), the ALJ had recommended ordering that the procedures for establishing a promotion committee for one Complainant should be initiated within 10 days of the Secretary's final order, and that a second Complainant should be reinstated to his former positions within 10 days of the Secretary's final order.
The Secretary found that pursuant to 42 U.S.C. § 5851(b)(2)(A) (as amended in 1992), the Secretary was required to issue "a preliminary order providing the relief prescribed. . . but may not order compensatory damages pending a final order." Thus, the Secretary rejected the ALJ's recommendation that remedies be delayed until up to 10 days after the Secretary's final order, and ordered the Respondent to comply with the remedies as described in the ALJ's R.D. and O. without further delay.