Whistleblower Protection Jurisdiction Issues
Under 10 C.F.R. Part 708 (“the whistleblower regulations”), DOE contractor employees who believe that their employers retaliated against them for making a protected disclosure may file a complaint with the Head of Field Element or with the DOE Employee Concerns Director (hereafter collectively “Field Elements”). Under the most recently-issued version of the whistleblower regulations, Field Elements are for the first time responsible for making jurisdictional determinations regarding these Part 708 complaints. Given this important new responsibility, Field Elements have understandably raised a number of questions regarding the meaning of the regulations, and the approach they should adopt in making these preliminary jurisdictional decisions. Set out below is some information, in question and answer format, that the Office of Hearings and Appeals (OHA) hopes the Field Elements will find helpful in making jurisdictional determinations. Anyone using these Questions and Answers should keep in mind that they are intended for informal guidance only. The information provided is not a binding interpretation of the regulations--that can only be done on a case-by-case basis. Any office using these Questions and Answers should always give primary consideration to the unique facts of the case before it.
QUESTIONS AND ANSWERS FOR DOE FIELD ELEMENTS CONCERNING JURISDICTIONAL ISSUES UNDER 10 C.F.R. PART 708
Q: Section 708.4(b) says that an employee may not file a complaint under Part 708 if the complaint involves misconduct that the complainant, acting without direction from his employer, deliberately caused or in which the complainant knowingly participated. Does this mean that an employee may not file a Part 708 complaint if his employer states that it terminated the individual for bad behavior?
A: The key here is to look at the employee’s disclosure, and not at the stated reason for the termination by the employer. For example, if the employee made a safety-related disclosure, stating that there was some contamination at the workplace, you should look at whether the employee intentionally created that contamination. If so, the Field Office should not accept the Part 708 complaint for further processing. However, if the contamination was caused by another employee, or if the complainant created the contamination inadvertently, then his disclosure of the contamination could be protected. In that event, if his employer later terminated him for some alleged misconduct, such as insubordination, Section 708.4(b) would not necessarily bar the employee from filing a Part 708 complaint. To give another example, suppose an employee stole some equipment from a plant, reported that theft, and claimed he made a protected disclosure regarding a violation of the law. The disclosure would involve misconduct by the complainant. A complaint based upon that disclosure would therefore be precluded under Section 708.4(b). So, to sum up, look to the nature of the protected disclosure and not to the given reason for the termination to see whether Section 708.4(b) applies.
Q: Section 708.5 says that an employee may file a complaint against his employer. What happens if the employee says that he has no complaint with his actual employer (a subcontractor), but only with a higher level contractor who actually took him off the job?
A: Section 708.5 is quite clear. The employee must at a minimum name his own contractor employer. Otherwise, the complaint can be dismissed for lack of jurisdiction. The Field Element should therefore advise the employee that a complaint may only be processed if it names his actual employer. The employee may also name a higher-level contractor that he believes to be at fault. The firm or firms that may ultimately be required to provide relief will be established later on in the proceeding by the OHA.
Q: The facts that have been revealed in the complaint and in the responses by the various contractors are murky. I do not have a good sense of where the truth lies, so making a determination on accepting jurisdiction will be difficult. What should I do?
A: It is only natural that the facts will be rather thin at the early stages of a Part 708 complaint proceeding. If the Field Element believes it needs a few additional facts, it can certainly request that a party clarify its position. Otherwise, it should make the best determination possible, given what it knows at the time. In these early stages of a Part 708 proceeding, particularly where there is little precedent on jurisdictional issues, you should resolve all disputed facts in favor of the complainant. Field Elements should err, if they must, on the side of accepting jurisdiction. The OHA can then consider jurisdictional issues more fully as facts and arguments are developed during the investigation and hearing stages.
Q: What if an employee has not filed his complaint in a timely fashion under Section 708.14? Do I have to dismiss?
A: Complaints are supposed to be filed within 90 days of the retaliation and may be dismissed if not timely. However, a Field Office has discretion to accept a late complaint under Section 708.14(d). You should give the employee an opportunity to state his reasons for the late filing. In your determination, you should fully discuss whether or not the reasons for the late filing have merit.
Q: If a complainant has not stated that he exhausted all applicable grievance or arbitration procedures as required by Section 708.12, do I have to dismiss?
A: No. First of all, if a complainant has exhausted these procedures and has simply failed to provide the statement, you should ask the complainant to provide the required statement. There may also be some question as to whether the procedures that the employer has put into place are actually grievance/arbitration procedures envisioned by Section 708.12, or whether they are simply some other type of internal review process that an employer offers. The employee is required only to avail himself of true grievance and arbitration procedures. Grievance procedures usually involve some union participation. Arbitration in this context would usually involve an employee meeting with his employer and a neutral third party. Other internal review opportunities provided by an employer, such as a review through an employee concerns process, might not meet this standard and an employee would therefore not necessarily be required to use them before filing a Part 708 complaint. You should nevertheless encourage a complainant to use employee concerns procedures, and try to resolve complaints in the simplest way possible. However, you will still have to make some factual and legal determinations on this type of issue. They may not be straightforward or obvious at this stage of a proceeding, but you should simply make the best determination you can based on what you know. In making a jurisdictional analysis and determination, you should resolve disputed facts in favor of the whistleblower. Complicated jurisdictional arguments can be considered by the OHA after more detailed fact-finding is done during the investigation and after a hearing has taken place.
Q: Section 708.17 talks about when a complaint should be dismissed. Do I have to dismiss if any of these criteria are met?
A: No. Section 708.17(c) states that dismissal is “appropriate” if any of the stated criteria are met. However, the Field Element should certainly consider if there are reasons why a complaint should go forward anyway. For example, a complaint may be dismissed if it is untimely. Section 708.17(c)(1). However, as discussed above, if there is good cause for the late filing, you should state what that good cause is and, if otherwise appropriate, permit the complaint to go forward. Nevertheless, it is unlikely that good cause can be found to exist for allowing a complainant to proceed under Part 708 if he has a pending complaint under state or other applicable law with respect to the same facts. Section 708.17 (c)(3). As a result, you will have to dismiss the complaint while another action is pending.
Q: What if a complaint does not include all the information required under Sections 708.12 and .13? Should I dismiss?
A: No. You should first provide the complainant with an opportunity to make all the statements necessary to constitute a good filing.
Office of Hearings and Appeals
July 25, 2000
(1) What is the DOE Contractor Employee Protection Program designed to do?
The program is designed to provide relief to DOE contractor employees who have suffered retaliation by their employers for engaging in protected activity. Protected activity includes making protected disclosures (i.e., whistleblowing), refusing to participate in certain activities, or participating in certain proceedings. The program is not designed to address the legal, safety, or management concerns that gave rise to the protected activity.
(2) How does the program work?
A DOE contractor employee files a complaint alleging that the contractor retaliated against the employee for making a protected disclosure or engaging in protected conduct. In general, if the employee is successful, the employee may obtain employment-related relief, such as back pay, reinstatement, and reasonable attorneys’ fees and expenses in pursuing the complaint.
The DOE Office of Hearings and Appeals is responsible for investigations, hearings and appeals. The office publishes the regulations and its whistleblower decisions at its web site, www.oha.doe.gov.
The issues in a proceeding are: (i) whether the complainant made a protected disclosure or engaged in protected conduct, (ii) whether any such disclosure or conduct was a contributing factor to an adverse personnel action or other alleged retaliation, (iii) whether the contractor would have taken the same action in the absence of the alleged protected disclosure or conduct, and (iv) what relief, if any, is appropriate. For more detail, see Questions 12 and 13.
(3) Why is the program limited to DOE contractor employees?
The program is limited to DOE contractor employees because special federal statutes protect federal employees.
(4) Who are the parties to a complaint?
The parties to the complaint are the DOE contractor employee, the employer, and, in some cases, higher tier DOE contractors.
(5) Does a complainant need legal representation during the investigation?
A lawyer is not required, but a lawyer may be able to make a stronger case for the complainant. Complainants who do not have lawyers are encouraged to ask the investigator any questions they may have about the investigatory process. In some cases, the complainant has retained an attorney after receiving the report of investigation. The report of investigation may help an attorney understand the complainant’s situation.
(6) What happens when a complaint is referred to the Office of Hearings and Appeals for an investigation and hearing?
The Director of the Office of Hearings and Appeals appoints an investigator, who then conducts an investigation. When the investigator issues a report of the investigation, the Director appoints a different individual to serve as the hearing officer. Once the investigator issues a report, his involvement in the case is concluded.
(7) What happens at the beginning of the investigation?
The investigator confers with the parties to learn about the subject matter, determine the scope of the investigation, and identify matters that are not disputed. The investigator exercises discretion in determining the issues for investigation.
(8) Will the investigator consider more than one alleged protected disclosure?
If the complainant alleges multiple protected disclosures, the investigator may focus on the disclosure(s) most likely to be protected and to have contributed to the alleged retaliation. If the investigator concludes that one disclosure is protected and a contributing factor to the alleged retaliation, there may be no need to consider the other alleged protected disclosures. The investigator generally does not focus on the number of disclosures. Finally, the investigator does not consider whether the contractor has satisfied the employee’s concerns about the subject matter of the disclosure.
(9) Will the investigator consider more than one alleged retaliation?
If the complainant alleges multiple retaliations, the investigator may focus on the most significant retaliations, i.e., those that most adversely affect the complainant or those that are the most proximate in time to the alleged protected conduct.
(10) How do the complainant and the contractor present their views to the investigator?
The complainant and the contractor each has an opportunity to talk with the investigator, to submit documents, and to identify individuals who have first hand knowledge of the events. The investigator exercises discretion in determining which individuals to interview. In some investigations, the interview memoranda are shared with the interviewee and the parties. In other investigations, those memoranda are provided when the report of investigation is issued.
(11) How do the complainant and the contractor submit documents?
In most cases, when the complainant or the contractor sends a document to the investigator, the party submitting the document must also send a copy to the other party. If the party submitting the document believes that it contains confidential material, the party should block out the confidential material before copying and submitting the document. The party should identify where deletions were made.
(12) What can the complainant and the contractor do to help the investigator identify and focus on the protected disclosure?
The complainant should focus on establishing a protected disclosure or protected conduct that the complainant believes was a contributing factor to the alleged retaliation (for example, a protected disclosure in close proximity in time to the alleged retaliation). Section 708.5 of the regulations defines those terms. In general, the complainant should avoid bringing up disagreements with management, which are not covered by this program. The contractor should focus on whether it agrees that the alleged disclosure occurred and, if so, whether it is protected. If there is a factual dispute about whether a disclosure occurred, both parties should identify relevant documents and witnesses.
(13) What can the complainant and the contractor do to help the investigator identify and focus on the alleged retaliation?
The complainant should identify the alleged retaliation, which can be an adverse personnel action or other action that falls within the definition of “retaliation” set forth in Section 708.2 of the regulations. Major adverse personnel actions are termination, demotion, transfer, and reprimand. Performance ratings, salary and bonus determinations, office assignments, and access to training may also form the basis for a Part 708 complaint. The contractor should consider submitting documents and identifying individuals to explain (i) why the contractor took the adverse action at issue, and (ii) how the contractor has treated similarly situated employees. In the case of a reduction-in-force, the contractor should consider submitting general information on how the reduction-in-force was structured, as well as specific information on why the complainant was terminated.
(14) What does the investigator’s report look like?
The report describes the results of the investigation. In particular the report focuses on the issues identified in the answer to Question 2. The investigator will identify the disputed issues and discuss the documents and interviews that address those issues. The report may contain tentative findings on those issues, and such findings generally help to focus the issues for the hearing but are not binding on the parties or the hearing officer. Once the report is issued, the investigation is concluded. The investigator does not participate in any further proceedings in the case.
(15) Who is responsible for the information in these questions and answers?
These questions and answers were prepared by Janet N. Freimuth, Deputy Assistant Director, Office of Hearings and Appeals. They describe the typical process for investigations. A party or interviewee in an investigation should direct any questions about procedures for that investigation to the investigator. Anyone not involved in an investigation who has general questions may contact Ms. Freimuth at HG-40/L’Enfant Plaza Bldg., 1000 Independence Ave., SW, Washington, DC 20585-1615, email@example.com, (202) 287-1439.
Last updated September 3, 2003
(1) What is the purpose of the Part 708 regulations?
These regulations are designed to protect DOE contractor employees who make a protected disclosure or engage in other protected activity from retaliation by their employer. The Part 708 process is not used to determine whether the substance of a protected disclosure was factually correct, or whether the contractor has responded appropriately to the factual matters that were disclosed by the complainant. If a DOE contractor employee (or complainant) believes that his employer has retaliated against him for making a protected disclosure or engaging in a protected activity, the employee is entitled to file a complaint with the DOE under 10 C.F.R. Part 708. The regulations provide that if the employee elects to have an investigation of his complaint, the DOE’s Office of Hearings and Appeals (OHA) will perform the investigation, and then provide the employee and the employer a right to have a hearing regarding the issues in the case.
(2) What is the purpose of the hearing?
The hearing will allow each side, the (contractor) employee and the (contractor or sub-contractor) employer to present evidence and to call witnesses who will testify about the issues that are in dispute.
(3) What are the normal issues that are in dispute in Part 708 cases?
The issues in this type of proceeding are: (i) whether the complainant made a protected disclosure or engaged in protected conduct; (ii) whether there was a retaliation, usually an adverse personnel action; (iii) whether the disclosure or conduct was a contributing factor to an adverse personnel action or other alleged retaliation; (iv) whether the contractor would have taken the same personnel action in the absence of the alleged protected disclosure or conduct; and (v) what remedial personnel action and relief, if any, are appropriate. In many cases, after an investigation has been completed, the facts about whether an employee made a disclosure or engaged in a particular activity are not in dispute, although there may be a legal dispute regarding whether the disclosure or activity is "protected" under Part 708.
(4) Who is the Hearing Officer?
The parties who will normally be attending the hearing are the complainant (a DOE contractor employee); the complainant’s employer (a DOE contractor) and, if applicable higher tier DOE contractors. The contractors will in virtually all cases be represented by lawyers. A lawyer may be able to make a stronger case for the complainant, and complainants are therefore encouraged to seek representation at the hearing. A Hearing Officer will preside at the hearing. The Hearing Officer is an employee of the DOE’s Office of Hearings and Appeals, a separate organization within the DOE, and is not affiliated with any DOE contractor. Although not a "party" to the proceeding, a court reporter is present to record a verbatim transcript of the hearing.
(5) Where will the hearing take place?
Hearings will normally be held at the facility where most of the witnesses are located, or at a nearby location such as the office of the court reporter who will transcribe the proceeding. Sometimes, if just one or two witnesses are unable to be present at the hearing site, it may be possible to take their testimony via telephone. While this type of testimony is not preferred, it is better than not having the testimony of an important witness who might not be able to be present at the hearing site.
(6) What will happen at the hearing?
Hearings are generally conducted as follows: First, the Hearing Officer makes an opening statement introducing himself/herself, explaining briefly the subject of the hearing and describing how the hearing will be run. Then, there is an opportunity for the complainant and the contractor(s) to make an opening statement describing their views of in the case, and the anticipated testimony of the witnesses. After this, the questioning of witnesses takes place. Each witness will be sworn in by the Hearing Officer. Then, the party that calls a witness will "examine" (question) him/her, and afterwards the other party will have the chance to "cross examine" that witness. The Hearing Officer will also ask questions to assure the fullest development of the record. There is also the chance for follow-up questions by each side. Witnesses may be asked to review and comment on critical documents. [Usually, these documents have been previously submitted, so that the opposing party and the Hearing Officer can have the chance to review them prior to the hearing. See Question 7] After all witnesses have testified, each side may make a closing statement. The Hearing Officer may also make a closing statement before the hearing concludes. Hearings generally run two or three business days, depending on how many witnesses there are and how long their testimony is.
(7) What type of preparation is necessary for the hearing?
The complainant should think about the points that he wants the Hearing Officer to know in connection with the protected activity, and the nature of the alleged retaliation. The employer should consider the points it wishes to raise in establishing that it would have taken the same personnel action in the absence of the protected disclosure or activity. The parties should be prepared to ask their own witnesses questions to bring out these points and should also be prepared to question (cross -examine) the opposing party’s witnesses about their testimony. Prior to the hearing, each side will provide the opposing party and the Hearing Officer with a list of witnesses, and state the subject matter of each witness’ testimony. Each side will also be expected to present to the opposing party and to the Hearing Officer copies of any documents that it expects to use in the case.
(8) Is there any material that will be useful to read prior to the hearing?
Be sure to read all the documents submitted by the opposing party. You should also read the regulations that are used in these hearings (10 C.F.R. Part 708). These regulations are set out at the OHA’s web site: http://www.oha.doe.gov. You will find two other sets of "Questions and Answers" regarding Part 708 on this website. One relates to jurisdictional issues and the other to investigation of complaints. You may also wish to look at Hearing Officer decisions that have been issued in other DOE Part 708 cases. These are also located on the OHA web site.
(9) Can either party privately discuss the substance of the case with the Hearing Officer?
No. The Hearing Officer cannot speak to either party privately about the substance of the case. Any discussion about the substance of your case with the Hearing Officer must include both the employee and the employer. However, the Hearing Officer can talk to either party privately about procedural issues, such as scheduling. The Hearing Officer can also discuss in general terms how to prepare a case or give you general information about what has been done in previous cases. Discussions about the substance of your case can also be conducted in writing, with a copy to all parties, or by E-mail to all parties. You are free to discuss the substance of your case individually with the opposing party, or the opposing party’s lawyer if it is represented. The Hearing Officer need not be a part of these discussions.
(10) Is there any way that the parties can all talk about the issues in the case with the Hearing Officer before the hearing?
Yes. There will be at least one prehearing telephone conference in which all parties will participate. that will include all the parties. This conference calls will occur at any stage of the prehearing phase of the proceeding, although it is recommended that one occur early in the proceeding. During the conference calls, the parties and the Hearing Officer will discuss the issues that will be raised at the hearing, who the witnesses are, and what they will testify about, as well as any other matters. The parties wish to raise. Hearing Officer may also make suggestions as to witnesses that a party should consider calling that will be useful to the party’s case. The parties may ask the Hearing Officer for suggestions as to what witnesses might be useful.
(11) Will there be other conference calls scheduled with the Hearing Officer?
Yes. Approximately two weeks before the hearing, the Hearing Officer will have a conference call with the parties in order to discuss final scheduling matters, such as the order in which witnesses will be called. The parties and the Hearing Officer will also establish a timetable for calling the witnesses, one that will best suit the convenience of the witnesses themselves, and the parties. This approach will promote efficient use of time allotted for the hearing. Through planning and efficient scheduling, witnesses will not have to spend a great deal of time waiting to be called to testify. It will also avoid delays in the hearing itself, which can be caused if witnesses do not appear on a scheduled basis. Each party is responsible for ensuring the appearance of its own witnesses at the appropriate time, and requesting that the Hearing Officer issue subpoenas, if necessary, to secure the appearance of witnesses. The Hearing Officer may also schedule other conference calls if such calls would be useful. Also, if the parties think an additional conference call would be useful, they should suggest it to the Hearing Officer, explaining what purpose it would serve.
(12) What do the parties in a Part 708 proceeding need to show?
In order to prevail, the complainant must show by a preponderance of evidence (i) that he made a protected disclosure or engaged in protected conduct, and (ii) that such disclosure or conduct was a contributing factor to a specific retaliation. "Preponderance" means more likely than not, i.e. at least a 51 percent probability. Once the complainant has made this showing, the burden shifts to the contractor to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the alleged protected disclosure or conduct. "Clear and convincing" is a level of proof higher than preponderance. Although there is not a fixed "percentage level" that we can refer to, it falls somewhere between "preponderance," and "beyond a reasonable doubt."
(13) What is a protected disclosure/activity? What is a retaliation? What relief is available?
These terms are defined and discussed in Part 708. You should refer to Sections 708.2, 708.5 and 708.36.
A. Some examples of protected disclosures include revelations of a substantial and specific danger to public health and safety, such as toxic spills, asbestos contamination, and failure to provide appropriate protective clothing. If the disclosure concerns a violation of law, it must be substantial. Thus, in order to qualify under Part 708, disclosure of theft must be significant. See Daniel Holsinger, Case No. VWA-0005 (1996). To qualify for protection under Part 708, disclosure of waste or gross mismanagement cannot simply represent a difference of opinion about an issue in which there is management discretion, such as how to use computer resources. See Roger Hardwick, Case No.VWA-0032 (1999) .
B. Some examples of adverse personnel actions that may constitute retaliation are termination of employment, downgrading, lowered performance ratings, smaller than normal pay increases and failure to provide training. Failure of a supervisor to include a complainant in after work personal activities is not considered an adverse personnel action.
C. Examples of relief include reinstatement, promotion, restoration of lost pay. Relief does not include actions such as demoting the supervisor, requiring the supervisor to apologize for taking an adverse personnel action, or correcting a health or safety concern that was disclosed. Relief also does not include monetary awards for pain and suffering or mental/emotional distress.
(14) How does a complainant show that he made a protected disclosure?
The complainant could show that he made a disclosure by producing some document describing the disclosure, such as a copy of a letter, memorandum or E-mail. The complaint could also introduce testimony of a witness to the disclosure or that of the person to whom a disclosure was made. If there has been an OHA investigation, the Hearing Officer may indicate in his or her first letter to the parties whether he or she believes that the evidence brought out in the investigatory stage shows that the complainant engaged in a protected activity. This determination is only a tentative one. If, for example, the Hearing Officer determines that the complainant has engaged in a protected activity, and the contractor disagrees with that tentative finding, the Hearing Officer will indicate in writing the steps necessary to establish that the protected activity occurred. In many cases, there may be no dispute that the complainant made a disclosure. However, there may be a disagreement as to whether the subject of the disclosure qualifies for protection under Part 708. For instance, the parties may agree that the complainant sent a given memorandum to a DOE official. However the contractor may contend that the matters covered in the memorandum are not protected disclosures. See Roger Hardwick , Case No.VWA-0032 (1999) .
(15) How does a complainant show that a protected disclosure was a contributing factor to a retaliation?
To make the contributing factor showing, a complainant could produce evidence that the employer made a statement that indicates he took the personnel action because of the protected disclosure, such as: "I’m going to downgrade that employee for reporting a safety violation." However, it is very rare for an employee to be able to produce this type of information. Normally, a complainant simply does not have direct evidence that the disclosure was a contributing factor to the alleged retaliation, i.e., that the employer in some way considered the disclosure in deciding to take the action. Therefore, we have been willing to conclude that the contributing factor showing has been made if there is reason to believe that the employer knew or should have known about the protected disclosure and the alleged retaliation came a relatively short time later, so that a reasonable person could conclude that the disclosure was a factor in the retaliation. It is not necessary that the person who took the retaliatory action actually had specific knowledge of the protected disclosure. We have been willing to "infer" that the person taking the allegedly retaliatory action "knew" of the protected disclosure/activity if other contractor personnel were aware of it. See Jimmie L. Russell, Case No.VBH-0017 (2000). During a prehearing conference or in written communications with all parties, the complainant should ask the Hearing Officer what types of evidence he or she should present in order to make his showing. Again, if an investigation has been conducted, the Hearing Officer may indicate in his first letter whether he/she believes that the complainant’s "contributing factor" showing has been satisfied.
(16) Does a showing of multiple protected disclosures help to establish that the disclosures were a contributing factor to a retaliation?
Once a valid protected disclosure has been shown and the Hearing Officer makes a determination that it was a contributing factor to a retaliation, the fact that a complainant made other protected disclosures does not, in most instances, necessarily add to the merit of the complaint or help the complainant meet his burden of proof. Therefore, an OHA investigator and the Hearing Officer to may limit the number of protected disclosures that will be considered in a proceeding. Our experience indicates that consideration of multiple disclosures is not productive and makes it more difficult for the parties and the Hearing Officer to focus on all the relevant issues.
(17) How does the contractor establish that it would have taken the same personnel action absent the protected disclosure?
The answer here depends on what the personnel action was. In most cases, a personnel action involves management’s response to employee "conduct" or employee "performance." Different types of information are used to support these cases..
(18) What is a "conduct" case, and what type of proof is necessary?
A conduct case is one in which the contractor alleges that the employee/complainant was disciplined for "bad behavior" on the job, and not in retaliation for making a protected disclosure. Examples include fighting on the job, excessive absences or unapproved absences and insubordination. In general, if a contractor has disciplined a complainant for a behavioral reason, the contractor should be prepared to show that it disciplined other employees in the same way for this same behavior. Thus, if the complainant was suspended for two weeks for a fist fight with another employee on the job, the contractor should explain what procedures were used, whether those procedures were used regularly, and the extent to which they conformed to written guidelines, such as an employee handbook. The contractor should also submit recent evidence regarding all employees who had engaged in physical fights on the job, or other misconduct of a similar severity, and show what discipline they were subjected to. It is not sufficient for the contractor simply to submit a personnel manual describing the type of discipline that may be imposed for a given infraction. Am-Pro Protective Services, Inc., Case No. VWA-0015 (1997).
(19) What is a "performance" case, and what type of proof is necessary?
A performance case is one in which the contractor argues that the personnel action taken by a supervisor was appropriately taken in response to the complainant’s poor job performance. Examples of poor job performance include failure to meet established deadlines, failure to finish projects, or substandard work product. In general, if a supervisor took a personnel action against a complainant for a performance reason, the contractor should be prepared to show what procedures it followed, and whether they conformed to written guidelines. The contractor should also show what action it took against other employees for the same deficiencies. If, for example, a complainant was put on a "performance improvement plan" for failure to complete projects, the contractor should show how in the recent past it treated other employees who did not complete their projects. In both performance and conduct cases, the Hearing Officer will suggest to the contractor the types of personnel records and witnesses who will be useful. The types of documents that the contractor should consider producing are recent lists showing disciplined employees and how they were treated.
(20) Are there any special issues regarding proof if an employee was terminated as part of a reduction of force?
If the complainant was terminated as part of a "reduction in force" (RIF), the showing a contractor must make is different from that in the conduct or performance cases. The contractor will first need to establish that the overall decision to hold the RIF was made without regard to the complainant, and also that the decision to reduce the number of employees in the complainant’s job category was also made without regard to the complainant. The contractor may also need to show how it determined the number of employees within the complainant’s job category who would be terminated. See Lucy Smith , Case No.VBA-0055 (2000) . Again, because of the complicated nature of this type of showing, the Hearing Officer may make preliminary findings. These findings will provide guidance to the contractor. The parties will be permitted to object to the preliminary findings. In addition to these showings, if the termination was based in part on the complainant’s performance, the contractor will also need to show that the complainant’s performance was rated fairly on the performance measures established for the RIF process (see Question 19). It may also need to establish that the other employees who were rated along with the complainant were also fairly rated. The contractor will probably have to produce the documents that were used as part of the RIF, including overall employee rankings and those that show the individual rating for the complainant and the other employees in his RIF group. Depending on the circumstances, the complainant may have a right to see the names of each employee who was rated and each employee’s rating, so that the complainant can examine contractor management witnesses about how the rating was reached. The contractor should be sure to bring witnesses to the hearing who can support the rating given to the complainant. For example, if the contractor gave the complainant a low rating because the complainant was argumentative and did not communicate well with his team members and supervisors, the contractor should produce as witnesses employees and supervisors who worked with the complainant who can testify that the complainant was difficult to work with and did not communicate well. Some cases that are relevant to this type of showing include, Janet Westbrook, Case No. VBA-0059 (2002), and Steven Collier, Case No. VBZ-0084 (2003). These cases are included in the OHA’s website.
(21) What if a party believes that there is an error in the Hearing Officer’s decision?
The regulations provide for an appeal to the Director of the OHA, who will review the Hearing Officer’s decision. Sections 708.32,.33, and .34.
(22) Whom do I contact with my questions?
If you have general questions about the answers presented above, please call your Hearing Officer at the telephone number listed in his/her letter to you. If you have any comments or suggestions for improving this Question and Answer Pamphlet, please contact Ann Agustyn , Chief, Employee Protection and Exceptions Division, Office of Hearings and Appeals, at telephone number (202) 287-1436. You may also send an email addressed to Ann.Augustyn@hq.doe.gov. In addition, you may write a letter addressed to:
Chief, Employee Protection and Exceptions Division
Office of Hearings and Appeals
HG-4/L’Enfant Plaza Building
U.S. Department of Energy
1000 Independence Ave., S.W.
Washington, D.C. 20585-1615
You can also FAX your comments to the Office of Hearings and Appeals at (202) 287-1415. P lease be sure to include a telephone number where you can be reached, so that we can discuss your comments with you, if needed.
Last updated August 2008