The US Department of Labor (DOL) Administrative Review Board (ARB) recently issued a decision in the case of Evans v. US Environmental Protection Agency, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 (ARB Mar. 17, 2020), dismissing a whistleblower complaint filed under various employee protection provisions and finding that the employer's actions against the complainant were reasonable and taken to ensure employee safety after the complainant threatened to bring a gun to work. The ARB’s decision is instructive for employers deciding how to respond to workplace threats and establishes that such actions—when reasonably based on the circumstances—will not be considered retaliatory. The ARB’s decision also addresses the legal standard for motions to dismiss a complaint before a hearing, and reinforces that for a concern to be protected, it must be grounded in a reasonably perceived violation.
Evans v. US Environmental Protection Agency involves a former employee of the Environmental Protection Agency (EPA), who worked at the EPA’s Radiation & Indoor Environmental National Laboratory (Radiation Lab). In May 2006, Radiation Lab’s deputy director informed the director of Radiation Lab that employees had accused the complainant of threatening to bring a gun to work to shoot people. As a result, the complainant was escorted off the premises and placed on paid administrative leave while the matter was investigated. While on leave, the complainant filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), alleging violations of the anti-retaliation provisions of several environmental statutes and Section 211 of the Energy Reorganization Act of 1974 (ERA).
The Radiation Lab’s investigation concluded that the complainant had, in fact, made threatening comments, and he was suspended for seven days without pay. After returning to work, he asked to take an unpaid leave of absence, which was denied. The complainant left work anyway and, after being absent for 51 days, was terminated. The complainant then filed two supplemental complaints, alleging the denied leave request and termination were retaliatory. OSHA dismissed the complaints. The complainant objected and requested a hearing before an administrative law judge (ALJ). The ALJ granted a motion to dismiss filed by the EPA under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP); however, the ARB reversed and remanded the decision. After a hearing, the ALJ ruled that the EPA had retaliated against the complainant. The ARB reversed the decision and dismissed the complainant’s claims.
Standards Governing Motions to Dismiss
In its earlier decision reversing the ALJ’s ruling on the EPA’s motion to dismiss, the ARB held that a whistleblower complaint could withstand a motion to dismiss if it provided “fair notice.” As explained by the ARB, “fair notice” entails (1) some facts about the protected activity and facts relating to one of the whistleblower statutes, (2) some facts about the adverse action, (3) an assertion of causation, and (4) a description of the relief sought. Evans v. US Environmental Protection Agency, ARB Case No. 08-059, ALJ Case No. 2008-CAA-003 at 9 (ARB July 31, 2012). But the ARB also explained that an ALJ should give the complainant a chance to amend their complaint unless it is clear that doing so could not save the complaint. In so doing, the ARB cautioned ALJs to not dismiss complaints for failing to state a claim until they allow complainants a “sufficient opportunity” to amend or supplement their complaints. Id. at 11-13. Although the ARB’s decision is silent on what comprises a “sufficient opportunity” to amend, the ARB stated that ALJs have the discretion to hold an informal prehearing conference or request supplemental submissions or prehearing statements to understand the nature of the claim before issuing a decision. Id. at 12. The ARB did not explain the extent to which ALJs should provide guidance to pro se complainants on what is necessary to save an otherwise deficient complaint.
Whistleblower Complaints Must Be Reasonably Grounded in Perceived Violations of the Statute
In its more recent decision following the hearing before ALJ, the ARB ruled that the complainant’s only protected act was filing his complaints with OSHA. The other activities initially held protected by the ALJ were not protected because they did not describe any reasonably perceived safety violations of the statutes under which the complainant sought relief. Evans, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 at 9. In this regard, the ARB emphasized that to be afforded protection, a complainant’s allegation of a statutory violation “must be subjectively and objectively reasonable.” Id.
The “subjective” component of this test requires showing an actual belief that the conduct complained about constituted a violation of relevant law. Id. The ARB explained that an “objectively” reasonable belief is “evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the complainant.” Id. A “profoundly misguided” or “insufficiently informed” opinion falls short. Id. at 10. Applying these standards, the ARB found that much of the complainant’s claimed protected activity—including supporting an unfair labor practices claim, and sending a letter to the EPA alleging “inequity, injustice, harassment, retaliation, and intimidation, along with age discrimination”—was not protected for lack of any reasonably perceived safety violations.” Id.
Reasonable Actions Taken to Ensure Employee Safety Are Not Retaliatory
The ARB also held that most of what the complainant called retaliation was, in fact, the “EPA’s response to his inappropriate behavior,” namely, threatening to bring a gun to work, which the EPA believed posed a genuine threat. The ARB also noted that the EPA’s actions were reasonable due in part to a prior incident that took place where a different worker arrived at work with a loaded weapon. The ARB stated that in light of that incident, it was reasonable for the complainant’s managers to take concerns about his behavior very seriously. Accordingly, employers should be mindful that possible actions that might be perceived as retaliatory, including the initiation of an investigation, should be evaluated to ensure they are reasonably based on available information, past experience, and commensurate with the significance of the situation.
Morgan Lewis will continue to monitor further developments in this area, and provide updates.