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Note: Anyone using these Questions and Answers should keep in mind that
they are intended as general guidance only. The information contained in this
pamphlet will describe generally the hearing process, explain your role in the
hearing and discuss matters that you might consider in preparing for a
hearing. This information should not be construed as legal advice. In the
unlikely event of a conflict between the information contained in this
pamphlet and DOE Regulations, the Regulations shall control. For more specific
procedural information about your own case, you should ask the Hearing Officer
(see Questions 9 and 10 below), or consult your attorney.
QUESTIONS AND ANSWERS CONCERNING HEARINGS CONVENED REGARDING COMPLAINTS OF
REPRISAL UNDER THE DEPARTMENT OF ENERGY’S CONTRACTOR EMPLOYEE PROTECTION
PROGRAM (10 C.F.R. PART 708)
The following is a list of the questions answered below:
1. What is the purpose of the Part 708 regulations?
2. What is the purpose of the hearing?
3. What are the normal issues that are in dispute in Part 708
cases?
4. Who is the Hearing Officer?
5. Where will the hearing take place?
6. What will happen at the hearing?
7. What type of preparation is necessary for the hearing?
8. Is there any material that will be useful to read prior to
the hearing?
9. Can either party privately discuss the substance of the case
with the Hearing Officer?
10. Is there any way that the parties can all talk about the
issues in the case with the Hearing Officer before the hearing?
11. Will there be other conference calls scheduled with the
Hearing Officer?
12. What do the parties in a Part 708 proceeding need to show?
13. What is a protected disclosure/activity? What is a
retaliation? What relief is available?
14. How does a complainant show that he made a protected
disclosure?
15. How does a complainant show that a protected disclosure
was a contributing factor to a retaliation?
16. Does a showing of multiple protected disclosures help to
establish that the disclosures were a contributing factor to a retaliation?
17. How does the contractor establish that it would have taken
the same personnel action absent the protected disclosure?
18. What is a "conduct" case, and what type of proof
is necessary?
19. What is a "performance" case, and what type of
proof is necessary?
20. Are there any special issues regarding proof if an
employee was terminated as part of a reduction of force?
21. What if a party believes that there is an error in the
Hearing Officer’s decision?
22. Whom do I contact with my questions?
Questions and Answers
(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. Go to List
(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. Go to List
(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. Go to List
(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. Go to List
(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. Go to List
(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. Go to
List
(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. Go to List
(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. Go to List
(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. Go to List
(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. Go to List
(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. Go to List
(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." Go to List
(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. Go to List
(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) . Go to List
(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. Go to List
(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. Go to List
(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.. Go to List
(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). Go to List
(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. Go to List
(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. Go to List
(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. Go to List
(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:
Ann Augustyn
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
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