West Virginia Association for Justice Convention
June 2007

Whistleblowers:
Can a Whistleblower Get Justice?
Can Her Lawyer Get Paid?

A Brief Overview of Whistleblower Litigation
Before the U.S. Department of Labor

by
David J. Marshall¹
Katz, Marshall & Banks, LLP
1718 Connecticut Ave. NW
Sixth Floor
Washington, D.C., 20009

I.  Introduction

The U.S. Department of Labor (DOL) oversees the implementation and enforcement of various statutes designed to protect employees from retaliation when they report unsafe environmental practices. The purpose of these anti-retaliation provisions is generally to protect employees whose actions aid the government in the enforcement of laws designed to protect the public. See English v. General Elec. Co., 496 U.S. 72 (1990) (noting that the "protection of employees" is the primary purpose of the environmental whistleblower statutes); Passaic Valley Sewerage Comm'rs v. Dept. of Labor, 992 F.2d 474, 479 (3rd Cir. Apr. 16, 1993) ("Whistleblower provisions are intended to promote a working environment in which employees are relatively free from the debilitating threat of employment reprisals for publicly asserting company violations of statutes protecting the environment such as the Clean Air Act and nuclear safety statutes."); Willy v. Coastal Corp. 855 F2d 1160 (5th Cir. 1988).

The DOL-enforced statutes discussed in this outline (collectively referred to herein as "the whistleblower statutes") include one nuclear, seven environmental, and one air-safety whistleblower statute, as well as a relatively new statute providing protection to employees who complain of securities violations at publicly traded companies.² These are as follows:

1)  Energy Reorganization Act of 1974 (ERA) 42 U.S.C. § 5851 (2005).

2)  Federal Water Pollution Control Act of 1972 (WCPA) 33 U.S.C. § 1367 (1972).

3)  Toxic Substances Control Act of 1976 (TSCA) 15 U.S.C. § 2622 (1986).

4)  Solid Waste Disposal Act of 1976 (SWDA), 42 U.S.C. § 6971 (1980).

5)  Clean Air Act of 1977 (CAA), 42 U.S.C. § 7622 (1977).

6)  Comprehensive Environmental Response, Compensation & Liability Act of 1980 (CERCLA), 42 U.S.C. § 9610 (1980).

7)  Pipeline Safety Improvement Act of 2002 (PSIA) 49 U.S.C. § 60129 (2002).

8)  Safe Drinking Water Act of 1974 (SDWA) 42 U.S.C. § 300j-9 (1994).

9)  Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), 49 U.S.C. § 42121.

10)  Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

While these statutes differ in focus, they share very similar language and purposes, and courts rely on case law interpreting one statute when interpreting the others. See Poulous v. Ambassador Fuel Oil Co., Inc., 866-CAA-1 (Sec'y Apr. 27, 1987).

The whistleblower statutes are patterned after the National Labor Relations Act (NLRA) and Mine Safety and Health Act (MSHA). See Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984) noting that the whistleblower provision in the ERA is modeled on, and serves an identical purpose to, the provision in the MSHA, and shares a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality); Ewald v. Commonwealth of Virginia, 89-SDW-1 (Sec'y Apr. 20, 1995) (finding that NLRA case law is particularly relevant to interpretations of the environmental whistleblower provisions administered by the DOL, as the provisions were explicitly modeled on the NLRA). In light of the remedial purposes of these laws, whistleblower statutes are generally given a broad construction by the courts. See Jenkins v. U.S. EPA, 92-CAA-6 (Sec'y May 18, 1994) (finding that the employee protection provisions of the environmental acts have traditionally been interpreted broadly).

While practitioners must be careful to ensure they are following the particular procedural and statutory requirements of the statute under which they are proceeding, the following general outline of the operation of these statutes is offered to provide guidance on litigating whistleblower claims before the DOL.

II.  Prima Facie Case

In order to establish a prima facie case under the whistleblower statutes, a complainant needs to present evidence sufficient to raise an inference, or rebuttable presumption, of retaliation. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 1 n. 7 (ARB May 30, 2003) (noting that a preponderance of the evidence is not required for plaintiff to establish a prima facie case of discrimination). This inference can be raised by demonstrating that 1) the employer is subject to the statute in question 2) the complainant engaged in protected activity 3) the employer subjected the employee to an adverse employment action, and 4) there was a causal connection between the protected activity and the adverse action. See generally Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004).

A.  Employer is Covered Under the Operative Statute

The threshold requirements for bringing a claim under the statutes are that the complainant is an employee of an employer covered by the statute, and the violation is one that the statute is designed to protect against. See Coupar v. Federal Prison Industries/Unicor, 92-TSC-6 and 8 (ALJ June 11, 1992). In order to be liable under the environmental statutes, the respondent must be deemed the complainant's employer. Demski v. Indiana Michigan Power Co., ARB No. 02 084, ALJ No. 2001 ERA 36 (ARB Apr. 9, 2004) (finding complainant was a contractor, and not an employee, of the respondent, and therefore was not entitled to relief under the whistleblower provision of the ERA); see also Seetharam v. General Electric Co., ARB No. 03-029, ALJ No. 2002-CAA-21 (ARB May 28, 2004) (in case brought against various vendors, contractors, lenders and partners of complainant's employer, complainant failed to create triable issue of fact regarding the establishment of an employee-employer relationship between complainant and respondents). The focus of the employer-employee inquiry is whether the proposed employer "acts in the capacity of" an employer with regard to the particular employee. Whether the employer directly compensates or immediately supervises the employee is not dispositive; the inquiry is fact-specific and undertaken on a case-by-case basis. See Williams v. Lockheed Martin Energy Systems, Inc., ARB No. 98-059, ALJ No. 1995-CAA-10 (ARB Jan. 31, 2001) (citing Stephenson v. NASA, ARB Case No. 98-025, ALJ Case No. 1994-TSC-5 (ARB July 18, 2000)).

In order to establish eligibility to bring an action under one of the statutes, a prospective plaintiff must also establish that the type of action complained about is the type of activity the relevant statute is designed to protect against. See, e.g., Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993) (race or sex discrimination complaint not cognizable under the ERA); Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (emissions as an occupational hazard not covered by CAA). See also McKoy v. North Fork Services Joint Venture, ARB No. 04-176, ALJ No. 2004-CAA-2 (ARB Apr. 30, 2007). In McKoy, the complainant informed a U.S. Senate staffer and a Homeland Security Site Director that he had observed a supervisor and another employee improperly handling asbestos and that he believed the asbestos could escape into the air. The ARB found that the complainant had not engaged in protected activity because his complaint was centered on asbestos as an occupational hazard, not as an environmental matter. The ARB stated, "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.

B.  Protected Activity

The employee protection provisions of the whistleblower statues protect only against retaliatory actions on the part of an employer, not actions that are simply unreasonable or arbitrary. See Collins v. Florida Power Corp., 91-ERA-47&49 (Sec'y May 15, 1995). The statutes cover a broad range of reporting activity, including internal complaints. See, e.g., § 5851(a)(1)(A) (part of the amendment to the ERA made in 1992, demonstrating that Congress had always intended to protect employees who notify their employer of an alleged violation as well as those who notify a federal regulator). See also Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24 1995); Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997); Passaic Valley Sewerage Comm'r v. Dep't of Labor, 992 F.2d 474 (3rd Cir. 1993); Kan. Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985) (reviewing legislative history of ERA, the statutes upon which it was modeled and the implementing regulations of the DOL and NRC, and finding internal complaints constituted protected activity) (cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986)); Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Willy v. Administrative Review Board, No. 04-60347 (6th Cir. Aug. 24, 2005) ("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.) (case below ARB No. 97-107, 1985-CAA-1); Kahn v. United States Secy. of Labor, 64 F.3d 271 (7th Cir. 1995) (defining an internal complaint as one lodged with a supervisor of the company itself and an external complaint as one lodged with an outside agency, such as the NRC); Bechtel Constr. Co. v. United States Secy. of Labor, 50 F.3d 926 (11th Cir. Apr. 20, 1995) (case below 87-ERA-44).

The complaint need not be formal or in writing. See, e.g., Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993) (informal safety complaint to a supervisor is sufficient to establish protected activity); see also Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996); 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).

Complaints to the media or environmental activists, even without first complaining to supervisors, may constitute protected activity. See Wedderspoon v. City of Cedar Rapids, Iowa, 80-WPC-1 (Sec'y July 28, 1980) (finding protected activity where a water pollution control operator was suspended without pay for five days after he reported discharge of sludge to a friend who was an "environmental activist" and after an article in the Des Moines Register appeared based on information provided to a reporter by the complainant).

Complaints to members of the general public may not be sufficient to give rise to a claim. See Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th Cir. 1995) (case below 87-TSC-2). The court in Simon affirmed the Secretary's 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. However, the court also noted that 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 applicable whistleblower provisions to constitute protected activity.

A Complainant's motive for making the complaint is irrelevant. See, e.g., Smith v. Western Sales & Testing, ARB No. 02 080, 2001 CAA 17 (ARB Mar. 31, 2004) (finding protected activity where the Complainant's primary motive for lodging complaints about the Respondent's painting operation, which included concerns about paint fumes being released into ambient air, was that paint overspray was damaging his vehicle).

In order to obtain protection under the whistleblower statutes, a complainant does not need to prove that unlawful activity was actually occurring. A complainant need only establish that they had a good-faith, reasonable belief that the complained of activity was unlawful. See, e.g., Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1994) (an employee who complained about dumping of antifreeze and a spill of oil, which were not considered hazardous under applicable law, engaged in protected activity because he had a reasonable belief that the substances complained of were in fact hazardous and regulated). ALJs have found that the belief must be objectively reasonable and it must be the actual belief of the complainant. See, e.g., Grant v. Dominion E Ohio Gas, 2004 SOX 63 (ALJ March 10, 2005).³

The reasonable belief of the Complainant need not necessarily be conveyed specifically as a part of the protected activity. See, e.g., Knox v. USDOL, No. 04-2486 (4th Cir. Jan. 17, 2006) (case below ARB No. 03-040, ALJ No. 2001-CAA-3). In Knox, the Fourth Circuit reversed the ARB's finding that a complainant had not engaged in protected activity under the CAA because, although he had complained to management about asbestos in the workplace, he had not specifically stated that he reasonably believed the asbestos to be escaping into "ambient air," which is one of the activities prohibited by the substantive provisions of the Clean Air Act. The Fourth Circuit held that the Complainant had in fact engaged in protected activity and remanded the case. The court noted that the appropriate inquiry was not whether a complainant specified his reasonable beliefs to management, but rather whether he complained of the unlawful activity and held a reasonable belief that the statute was being violated. Id.

C.  Adverse Action

In a recent case arising under the employee-protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), 49 U.S.C. § 42121, the ARB issued a ruling that expressly adopted the broad definition of retaliatory acts that the U.S. Supreme Court enunciated last summer in Burlington Northern & Santa Fe Ry. Co. v. White, ---- U.S. ----, 126 S. Ct. 2405, 2409 (June 22, 2006). In Burlington Northern, the Supreme Court held that, in order to trigger a violation of Title VII's anti-retaliation provision, "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The ARB applied this new, liberalized standard in Hirst v. Southeast Airlines, Inc., ALJ No. 2003-AIR-47, ARB Nos. 04-116, 04-160, (ARB Jan. 31, 2007), slip op. at 9 - 11, and suggested in doing so that the broader standard would apply in cases arising under the employee-protection provisions of the other statutes enforced by the DOL. See also, McClendon v. Hewlett Packard, Inc., 2006-SOX-29 (ALJ Oct. 5, 2006) (relying on Burlington Northern and finding that the transfer of complainant to an entirely new position with reduced and narrower responsibilities would dissuade a reasonable employee from engaging in protected activity, and therefore constituted an adverse act under SOX). It remains to be seen how the ALJs will interpret the Burlington standard in the environmental and nuclear whistleblower context, but the Supreme Court's expansion of Title VII's protection against retaliation will certainly make more employer conduct actionable under these statutes.

D.  Causal Connection Between Protected Activity and Adverse Action

Under some of the employee-protection provisions enforced by the DOL - including the ERA, the AIR 21 and SOX - the complainant need only show that his or her protected activity was a "contributing factor" in the employer's adverse action. See, e.g., Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); Stone & Webster, 115 F.3d at 1572; Dysert v. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir. 1997); Kester v. Carolina Power & Light Co., ARB Case No. 02-007, ALJ No. 00-ERA-31, slip. op. at 3 (ARB Sept. 30, 2003) (citing 42 U.S.C. § 5851(b)(3)(c)). This is a far easier standard to meet than the various burdens that the courts have established in the broader field of employment discrimination. As the courts have held in the context of the Whistleblower Protection Act, which accords protection to federal employees, "contributing factor" means "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the decision." Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993). Thus, "any weight given to the protected disclosure, either alone or even in combination with other factors, can satisfy the 'contributing factor' test." Id. (emphasis supplied). Under this lenient standard, the complainant need not show that the employer was motivated by retaliatory intent in order to show that his protected activity was a contributing factor in the taking of an adverse personnel action. McCollum v. Nat'l Union Credit Administration, 417 F.3d 1332, 1341 (Fed. Cir. 2005).

Temporal proximity between protected activity and the adverse action may give rise to an inference of causation. See, e.g., Mandreger v. Detroit Edison Co., 88-ERA-17 (Sec'y Mar. 30, 1994) (finding a six-month interval between internal complaint and job transfer sufficient to raise the inference of causation); see also Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). However, temporal proximity alone is not necessarily sufficient. See Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001) (finding that even where the adverse action follows "closely on the heels" of protected activity, an intervening event that could independently have caused the adverse action compromises the inference of causation); see also Keener v. Duke Energy Corp., ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006) (finding a 13-month gap between the protected activity and complainant's discharge, and several intervening events, was sufficient to break causal connection).

In order to establish causation, a complainant must also typically demonstrate that the decision-makers involved in the adverse action were aware of the protected activity in question. See, e.g., Shirani v. Comed/Exelon Corp., ARB No. 03-100, ALJ No. 2002-ERA-28 (ARB Sept. 30, 2005) (finding that the complainant's allegation that he had been terminated by a newly hired manager as part of a broad conspiracy to cover up safety issues he had raised was "barely even rank speculation" and that the complainant presented no evidence that the managers who declined to offer him a position during restructuring knew about his alleged protected activity).

Performance problems predating protected activity do not necessarily sever the causal link between the protected activity and the adverse action if the whistleblower would not have been terminated "but for" the protected activity. See Bhat v. District of Columbia Water and Sewer Authority, 2003-CAA-17 (ALJ Nov. 1, 2005) (citing Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982); Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Passaic Valley Sewerage Comm'rs v. Dept. of Labor, 992 F.2d 474, (3rd Cir. Apr. 16, 1993); Dale v. Step 1 Stairworks, 2002-STA-00030 (ALJ April 11, 2003), aff'd, in part, and rev'd in part, on other grounds (ARB March 31, 2005).

However, an employee may not be protected from adverse action for persisting in her complaints once the complaints have been adequately addressed by her employer. See, e.g., Williams v. U.S. DOL, 157 Fed.Appx. 564 (4th Cir. Nov. 18, 2005) (per curiam) (unpublished)(schoolteacher who complained about unsafe levels of lead and asbestos in schools at public forums and to regulatory groups was no longer protected after the schools took steps to ensure safety in response to her concerns) (case below ARB No. 01-021, ALJ No. 2000-CAA-15).

III.  Burdens

A.  Direct Evidence Framework

Direct evidence of discrimination usually involves oral or written statements that the employer took adverse action against he employee because the employee engaged in protected activity. See, e.g., Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (finding direct evidence of retaliatory intent where supervisor threatened employee with "revenge" if she held out for too much money on her discrimination clam). In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), a case brought under the TSCA, WPCA, CAA, and SWDA, the ARB found no direct evidence of discrimination despite the complainant's testimony that his immediate supervisor had boasted that he was the only one with enough guts to get rid of the complainant. The ARB declined to ascribe significance to this post-termination statement, and concluded that other supervisors were the responsible decision-makers in the case. Id., slip op. at 12 (citation omitted). Of course, a complainant who establishes retaliatory motive by direct evidence must still demonstrate a causal relationship between the protected activity and the adverse employment action in question. See Trimmer v. Los Alamos National Laboratory, 93-CAA-9 and 93-ERA-55 (ARB May 8, 1997) (finding in favor of the employer where Complainant's supervisor candidly acknowledged that he would prefer not to supervise an employee who, without authorization, gave business documents to a reporter and to Congress because the Complainant had "has not shown . . . a discriminatory motive in the decision to discharge him.").

B.  Mixed Motive Cases

Where the complainant lacks direct evidence, environmental whistleblower cases typically apply the burden-shifting framework that the Supreme Court established for employment discrimination under Title VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which allows for proof of retaliatory motive by circumstantial evidence. First, the plaintiff must prove her prima facie retaliation claim. Second, the burden then shifts to the defendant to provide a "legitimate, nondiscriminatory reason" for the adverse action(s) taken. Third, if the defendant has satisfied its burden of production, then the plaintiff must be afforded a fair opportunity to show that the defendant's proffered reason is actually a pretext for unlawful discrimination. Id. at 802-804.

The Supreme Court clarified the level of proof required at each stage and the consequences for a party's failure to satisfy its burden, while keeping the tripartite framework. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-19 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-56 (1981). Under Hicks, if the plaintiff makes a prima facie case, then defendant's burden is not discharged unless the defendant "introduces evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Hicks, 509 U.S. at 509 (emphasis in original). If the defendant meets its burden, then the trier of fact proceeds to the ultimate question - instead of going through the third McDonnell Douglas step - and decides whether to reject defendant's proffered reasons. Id. at 511. If the trier of fact rejects these reasons, then the ultimate burden of persuasion remains with the plaintiff. Id. Alternatively, if the defendant fails to rebut plaintiff's prima facie case, then "the court must award judgment to the plaintiff as a matter of law." Hicks at 509.

C.  ERA, SOX and AIR 21

As noted above, proof of causation is different in cases arising under the ERA, SOX and AIR 21 than in the other environmental statutes. In these cases, the employee need only show that her protected activity is a "contributing factor" in the employer's decision to take adverse action against her. Once an employee meets this test by a preponderance of the evidence, these statutes allow employers to avoid liability by establishing by "clear and convincing evidence" that they would have made the same decision even in the absence of the employee's protected activity. See, e.g., 42 U.S.C. § 5851(b)(3)(C)(D).

This framework is more whistleblower-friendly than the burdens of proof that employees face under the other environmental whistleblower statutes. See Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004) (summarizing the respective burdens of production and proof under the whistleblower provisions of the environmental statutes and the ERA). As the ARB explained in Schlagel, "[]Congress has specifically placed a higher burden on the employer in an ERA case . . . to demonstrate by 'clear and convincing' evidence that it would have nevertheless taken the same action [notwithstanding the protected activity] . . . it has not done so with respect to employers under the CERCLA, TSCA or CAA." However, notwithstanding this higher standard, the ultimate burden of proving their case by a preponderance of the evidence, remains with the complainant. See Adornetto v. Perry Nuclear Power Plant, 1977-ERA-16 (ARB Mar. 31 1999) (citing Carrroll v. Bechtel Power Corp., 1991-ERA-46 slip op. at 4-7 (Sec'y Feb. 15 1995) and stating the standard legal principles to be applied in nuclear whistleblower proceedings)), aff'd Carroll v. U.S. Dept. of Labor, 78 F. 3d 352 (8th Cir. 1996).

IV.  Remedies

DOL regulations provide for reinstatement, compensation for lost wages and incidental damages. See 29 C.F.R. § 24.6(b)(2). In fact, a preliminary order of reinstatement is required in ERA and SOX cases (unless an exception has been met) when a complainant prevails at the ALJ hearing. See 42 U.S.C. § 5851(b)(2)(A), 18 U.S.C. § 1514(c)(2)(A). After-acquired evidence of employee misconduct rising to the level of a firing offense may limit damages in a an environmental or nuclear whistleblower case. See Smith v. Tennessee Valley Authority, 89-ERA-12 (Sec'y Mar. 17, 1995) (after-acquired evidence must be taken into account in determining the appropriate remedy, and generally, neither reinstatement nor front pay are appropriate in cases of this type).

Punitive damages are prohibited under the ERA. See 42 U.S.C.§ 5851(b)(2)(B) (2001); Smith v. Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996) (absent express statutory authorization, lacking in the ERA, punitive damages prohibited). However, the TSCA and the SDWA provide for punitive damages where there is evidence of "wanton and reckless misconduct." See 15 U.S.C. § 2622(b), 42 U.S.C. § 300j-9(i)(2)(B)(ii) explicitly permitting "where appropriate, exemplary damages." See, e.g., Johnson v. Old Dominion Security, No. 86-CAA-3, slip op. at 24-25 n. 20 (Sec'y Sept. 29, 1998). All the environmental and nuclear whistleblower statutes provide for costs, expenses and attorney's fees to prevailing parties. See 29 C.F.R. § 24.1-.9 (2004).

V.  Procedure

In order to commence an action for unlawful retaliation under one of the environmental whistleblower statutes, a complainant must file a written complaint with DOL or the Occupational Safety and Health Administration, which is part of DOL. 29 C.F.R. § 24.3. The filing may be informal in nature. See Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011,(1986) (citing 29 C.F.R. § 24.3) (finding a letter to the Secretary of Labor detailing a whistleblower's situation, though informal in nature, is equivalent to the filing of a formal legal complaint).

Statutes of limitations vary but can be as short as 30 days, so the practitioner should be cautious to pay particular attention to the statute of limitations in the operative statute under which they are proceeding. See 29 C.F.R. § 24.3(b). The clock runs from the time the employee becomes aware or reasonably should be aware of the employer's adverse action. See Belt v. U.S. DOL, Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19) (affirming the ARB's determination that the complainant's ERA complaint was not timely filed based on the date that the complainant signed an irrevocable memorandum acknowledging his decision to be selected for an involuntary reduction in force and finding that the notice of termination, even if indefinite as to effective date, would have been sufficient to commence the running of the limitations period). In ERA nuclear whistleblower cases, the time to file with the Department is 180 days from the date of the adverse action, as it is for cases under the Pipeline Safety Act. See 42 U.S.C. § 5851(b)(1) (ERA); 49 U.S.C. § 60129(b)(1) (Pipeline Safety).

In some circumstances the doctrine of equitable tolling may be employed to extend the time for filing whistleblower claims. See, e.g., Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001) (employer concealed an operative fact that formed the basis of the claim); Immanuel v. The Railway Market, ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005) (equitable tolling is permitted when claim is mistakenly filed in the wrong forum with a state agency, but complaint was untimely because it was filed more than 30 days after the wrong forum dismissed the case).

Once a complaint is filed, OSHA initiates an investigation and issues an initial determination. Either party may file a request for a hearing before an ALJ, but must file the request within five days after receiving the finding. See 29 C.F.R. 24.4(d)(2)(3). Discovery commences immediately after filing the request for a hearing. Under the nuclear and environmental statutes, a Complainant has a right to a hearing within 90 days after the complaint is filed. See 29 C.F.A. 24.6(b)(1). After the hearing, a written opinion, known as a recommended opinion & order "R. D.&O" is issued by the ALJ. Either party has 10 days to appeal this decision to the Administrative Review Board (ARB). See 24 C.F.R. § 24.8 (a). If no petition is filed, the recommended decision becomes the final order of the secretary. See 29 C.F.R. § 28.7(d). The ARB reviews the case de novo. See Griffith v. Wackenhut Corp., ARB No. 98-067, No. 1997-ERA-52 slip op. at 9 (ARB Feb. 29, 2000) (citing 5 U.S.C. § 557(b) (2001). ARB final decisions are appealable by petition to the U.S. Court of Appeal for the appropriate circuit.

¹  David J. Marshall is a Partner with Katz, Marshall & Banks, LLP, a plaintiffs' employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and represents whistleblowers in the nuclear, environmental, medical, financial and other industries. Justine Andronici, an associate with Katz, Marshall & Banks, LLP, assisted in the research and writing of these materials.

²  Convenient links to the text of each of these statutes are available on website of the Department of Labor's Office of Administrative Law Judges  (OALJ) (last visited May 16, 2007). The OALJ website features a very useful and user-friendly law library, well-indexed digests and full texts of the DOL decisions regarding these statutes, both "ALJ" decisions at the trial level and "ARB" (formerly "Sec'y") decisions from the DOL appellate body, which was the Secretary of Labor and is now the Administrative Review Board.

³  Although the language of SOX's whistleblower provision suggests that employees are protected for reporting a wide range of unlawful activity, courts and ALJs have held that such protection extends only to employees whose complaints relate to fraud against shareholders or other violations of federal securities laws. See generally Fraser v. Fiduciary Trust Co., 2006 WL 399468 (S.D.N.Y.) (Feb. 16, 2006). And see, e.g., Tuttle v. Johnson Controls Battery Div., 2004-SOX-76 (ALJ Jan. 3, 2005); Marshall v. Northrup Gruman Synoptics, 2005-SOX-0008 (ALJ June 22, 2005).

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