DOL Home > OALJ > Whistleblower > Ewald v. Commonwealth of Virginia, 89-SDW-1 (ALJ Oct. 19, 1992 ) |
89-SDW-1
In the Matter of
PAULINE EWALD
Complainant
v.
COMMONWEALTH OF VIRGINIA
Respondent
BEFORE: STUART A. LEVIN
Administrative Law Judge
This matter arises pursuant to a complaint filed by Pauline Ewald under various "whistleblower" statutes administered by the Department of Labor. (Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 910 (CERCLA); Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6971, (RCRA); Clean Water Act, 33 U.S.C. Sec. 1367, (CWA); Safe Drinking Water Act, 42 U.S.C. Sec. 300J. (SDW)). Ms. Ewald alleges, inter alia, that she was improperly fired from her job as Director of the Virginia Superfund Program with the Virginia Department of Waste Management because she reported to the U.S. Environmental Protection Agency that her employer was misusing and misappropriating federal grant money.
The Commonwealth of Virginia seeks dismissal of this matter on the ground that it is barred by the doctrine of collateral estoppel. The Commonwealth asserts that the same basic set of circumstances alleged here underlie a complaint filed by Ms. Ewald in U.S. District Court for the Eastern District of Virginia. In the District Court complaint, Ms. Ewald alleged that her employer subjected her to "an ongoing campaign of harassment and intimidation, and eventually discharged her in
response to serious concerns she raised about fraud, waste, and abuse at the Department of Waste Management (DWM), in violation of her constitutional rights of free speech and due process.
On April 22, 1991, the District Court granted Defendant's motion for summary judgment and dismissed the complaint. The Court held in pertinent part:
On July 22, 1992, the Court of Appeals affirmed the order of the District Court. Ewald v. Department of Waste Management, No. 91-1583, unpublished, (4th Cir., 1992). The Appellate Tribunal reviewed the procedures employed by the District Court in granting summary judgment and concluded that Ewald was afforded a fair opportunity to litigate her cause. On the merits, the Court reflected upon the test which must be satisfied to prevail on a First Amendment whistle-blower claim. Citing Huang v. Board of Governors of University of North Carolina, 902 F.2d 1134i (4th Cir. 1990), the Court noted that a key element a Plaintiff must establish is that but for, the protected expression, the employer would not have taken the alleged retaliatory action. The Court then evaluated Ms. Ewald's contentions and held:
The evaluation employed by both the District Court and the Court of Appeals in Ewald included a detailed consideration of the personnel difficulties which persuaded the District Court that there was no "material dispute that speech was not the 'but for' cause of the discharge." Consideration of the purportedly legitimate reasons supporting allegedly adverse action has been a pivotal element in the evaluation of whistleblower litigation by the Secretary of Labor since Dartey v. Zack, 82-ERA-2 (1983), essentially adopted a format set forth by the Second Circuit in Consolidated Edison v. Donovan, 673 P.2d 61, (2nd Cir. 1982). Consolidated Edison, in turn, was predicated upon the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 287 (1977). As the Consolidated Edison court observed, the Mt. Healthy model "is known as the 'but for' test. In other words, the employee would not have been dismissed but for his protected activity." at 62.
Whether viewed as a mixed motive, or "pretext" case, the District Court's conclusion here that the protected activity was not the cause of the discharge may successfully rebut any inference of retaliation or discrimination which could arise analytically under the Dartey formula. Moravec v. HC&M Transportation, Inc. 90-STA-44 (1992), fn. 9. Thus, the District Court found that: "There is no dispute that Ewald resisted and resented the actions of her new supervisor, Das, from the moment he got the Job. Many of her complaints were about personal employment differences she had with Das' management style. Most notably, Ewald does not deny that she threatened to erase a federal grant package after one of her disciplinary notices." These reasons, not "protected conduct" motivated the discharge according to the court, and these are legitimate reasons for adverse action under Dartey. See, Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Dec. of Secretary, 1991).
I have taken into consideration the fact that the Fourth Circuit in Huang v. Board of Governors of University of North Carolina, 932 F.2d 1134 (4th Cir. 1990), places a burden upon the
employee to show that but for the protected expression, the employer would not have taken the alleged retaliatory action. Under the Mt. Healthy framework, the burden rests with the employer to demonstrate that it would have taken the same action even if the employee had not engaged in the protected activity. The District Court in this matter, however, found not only that Ewald failed to carry her burden of proof, it also considered the Employer's reasons supporting the action which it took. Thus, the Court affirmatively found that the protected activity was not the cause for the discharge. Indeed, the Court concluded that there was no material dispute in this regard. In these respects, the Court's decision, while citing Huang, nevertheless weighed Mt. Healthy-type justifications proffered by the Employer.
A.
The remaining issue then is whether collateral estoppel precludes Ms. Ewald from relitigating the cause of her discharge in the context of these administrative proceedings. In a general sense, the doctrine of collateral estoppel is applicable in administrative proceedings under circumstances in which "a judgment on the merits in a prior suit between the same parties-- even though not the same cause of action--precludes the relitigation in a subsequent suit of any issues actually litigated and determined in a prior suit." (Stein, Mitchell, and ezines, Administrative Law. Matthew Bender, (1977), Section 40.01 at 40-14). As the Third Circuit Court of Appeals similarly observed:
The Chisholm rationale was later cited with approval and adopted by the Court of Appeals in Otherson v. Department of Justice, 711P.2d 267, (D.C. Cir. 1983). In Otherson, the court affirmed the invocation of collateral estoppel, or issue preclusion, in Merit Systems Protection Board proceedings against an INS agent previously convicted of on-duty misconduct in Federal District Court.
More recently, the Department of Labor has had an opportunity to consider the application of collateral estoppel in the context its administrative adjudications. In Nissi Corp., SCA 1233, (1990), the Deputy Secretary reversed a decision by Judge Earman, and held that it "was error for the ALJ to refuse to give preclusive effect to issues decided by the CAB decision on the ground that the decision was based on a mistake of fact. If that rule were to obtain, res judicata and collateral estoppel would never operate to bar litigation because the second tribunal could always find perceived error in the first judgment .... Accordingly, the ALJ erred in refusing to give preclusive effect to the issues litigated in the CAB decision for the reasons he gave., The Deputy Secretary was persuaded that "It is well settled that an administrative decision may be given preclusive effect." Under such circumstances, there would seem little basis for failing to afford similar preclusive effect to the findings of a Federal District Court.
The test for issue preclusion articulated by the Deputy Secretary was extracted from the doctrines set forth by the Supreme Court in Montana v. U.S., 440 U.S. 147 (1979). Application of the issue relitigation bar involves three distinct steps (1) is the issue identical to that actually decided by the other agency, (2) was the issue necessary to the earlier judgment, and (3) did the party against whom preclusion would operate have a full and fair opportunity to litigate the issue?" Nissi at 9.
Applying the Nissi rationale as formulated by the Deputy Secretary, I find and conclude that same basic facts and
circumstances which form the basis of the District Court's decision also underlie the complaint Ewald filed with the Department of Labor. These circumstances include not only the cause of discharge, but encompass claims of subsequent "blacklisting." Thus, the Court found that there was "no evidence that the defendant republished any allegedly defamatory statements after Ewald was fired in August 1988...." Ewald, Slip Opinion at 15. Nor did the Court find anything in the record before it which indicates she was disciplined or terminated for her 'association' with any person, group, or set of ideas." The context in which the adverse action was taken and the alleged "blacklisting" occurred provided the core of the foundation of facts supporting the Court's Order and was essential to its decision.
I further find and conclude that Ms. Ewald was afforded a full and fair opportunity to litigate her claims in the prior action. The District Court specifically determined that Ms. Ewald was afforded due process at the State level, and the Fourth Circuit Court of Appeals affirmed the District Court's ruling. The Appellate Tribunal also affirmed the procedures employed by District Court in granting summary judgment against Ms. Ewald. Thus the Court of Appeals has determined that Ms. Ewald was afforded a full and fair opportunity to litigate her claims both at the state level and before the Federal District Court.
For all of the foregoing reasons, I find and conclude that the doctrine of collateral estoppel is applicable and herein bars Complainant from relitigating the cause of her discharge or the allegation of "blacklisting" as alleged in her administrative complaint and an decided by the District Court. Nissi, Supra. Accordingly:
IT IS ORDERED that the Motion for Summary Decision filed by the Commonwealth of Virginia be, and it hereby is, GRANTED; and
IT IS FURTHER ORDERED that the Complaint filed by Pauline Ewald be, and it hereby is, DISMISSED.
STUART A. LEVIN
Administrative Law Judge