DOL Home > OALJ > Whistleblower > Keene v. Houston Lighting & Power Co., 95-ERA-4 (Sec'y Dec. 11, 1995) |
DATE: December 11, 1995 CASE NO. 95-ERA-4 IN THE MATTER OF EARL VANDORN KEENE COMPLAINANT, v. EBASCO CONSTRUCTORS, INC. A/K/A RAYTHEON CONSTRUCTORS, K/N/A RAYTHEON ENGINEERS AND CONSTRUCTORS, INC. RESPONDENTS. BEFORE: THE SECRETARY OF LABOR PRELIMINARY ORDER On September 29, 1995, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. and O.) in this case arising under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (Supp. IV 1992), as amended by the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776, 3123. On October 10, 1995, the ALJ issued an Errata. A final decision on the merits of the R. D. and O. must await a Secretarial decision on the substance of this case, which will be issued in due course. In 1992 the whistleblower provision of the ERA was amended in several respects by Section 2902 of the CNEPA. The amended provision is applicable to this case, which was filed subsequent to the effective date of the CNEPA. It provides in pertinent part: Upon the conclusion of [a public hearing before an ALJ] and the issuance of a recommended decision that the
[PAGE 2] complaint has merit, the Secretary shall issue a preliminary order providing the relief prescribed in subparagraph (B), but may not order compensatory damages pending a final order. * * * * (B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) of this section has occurred, the Secretary shall order the person who committed such violation to (I) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys' and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. 42 U.S.C. § 5851(b)(2)(A) & (B) (1988 and Supp. V).[1] The plain meaning of Section 5851(b)(2)(A) & (B) requires a preliminary order enforcing the R. D. and O. provisions regarding backpay, interest and costs, and the expungement of Complainant s employment record. See C. D. Varnadore Oak Ridge National Laboratory and Lockheed Martin Energy Systems, Inc., Case Nos. 94-CAA-2, 94-CAA-3, Preliminary Order, September 11, 1995, slip op. at 5. The ALJ issued a Recommended Supplemental Decision and Order (R. S. D. and O.) concerning the payment of costs and expenses, included attorney fees, on November 28, 1995. The ALJ did not award attorney fees and costs because Complainant did not respond to the Order to file a petition itemizing such expenses. Due to Complainant s failure no preliminary award of such expenses is appropriate. An additional opportunity for payment of cost and expenses, including attorney fees, will be given upon issuance of my final order in this matter, if Complainant prevails. Therefore Respondent is preliminarily ordered to: 1) Pay Complainant back pay in the amount of ,437.72 with interest from the date the payments were due as wages until the
[PAGE 3] actual date of payment, in accordance with 26 U.S.C. § 6221; 2) Expunge from Complainant s record the fair appraisal given him upon his termination in March, 1994; and 3) No preliminary order of costs or expenses is awarded. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] Subparagraph B was not amended by the CNEPA. On March 16, 1994, the Secretary of Labor proposed regulations to implement the CNEPA amendments to the ERA. 59 Fed. Reg. 12506. These regulations have not yet been finalized.