Bernabei & Wachtel Blog

National Law Journal Quotes Lynne Bernabei

In the October 29 issue of The National Law Journal, Lynne Bernabei is quoted in an article entitled “Employers Scoring in Whistleblower Actions”. The article discusses how the Department of Labor’s interpretation of the Sarbanes-Oxley Act of 2002(SOX) does not adequately protect employees. "If you have someone reporting insider trading, you shouldn't have to say in addition that they're defrauding shareholders, that should be enough," Ms. Bernabei says in the article. She adds that the Department of Labor has created a burden of proof for employees beyond what the statute requires.

Justin Dreyfuss

Federal sector case vs. Smithsonian

The U.S. District  Court for the District of Columbia recently issued a decision involving a former employee of the Smithsonian, who had gender and disability discrimination claims.  There are two interesting aspects of the decision: (1) the employee need not do a formal EEO report with the agency's EEO officer in order to comply with the 45 day reporting requirement, as long as she sufficiently places the agency on notice; and (2) although the United States gets substituted as the defendant on the plaintiff's common-law tort claims against two supervisors per the Westfall Act, the court refuses to dismiss the invasion of privacy claim under the Federal Tort Claims Act, since that tort is not specifically enumerated as non-justiciable, so that there is no sovereign immunity (in contrast to defamation and other enumerated torts).

The decision is online at this link, and some excerpts follow:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1886-16

 

Klugel v. Small, No. 2006 CV 1886 (D.D.C. Oct. 26, 2007)

Doratha Klugel, a former employee of the Smithsonian Institute ("Smithsonian"), brings this action against Lawrence M. Small, in his official capacity as the Secretary of the Smithsonian, alleging claims of sex and disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Rehabilitation Act of 1973, 29 U.S.C. § 720 et seq. ("Rehabilitation Act"), as well as tort causes of action for invasion of privacy and defamation. Klugel also asserts the tort causes of action against two Smithsonian employees. Before the court is defendants' motion to dismiss or, in the alternative, for summary judgment, and to substitute the United States as the sole defendant for Klugel's tort claims [# 9]. Upon consideration of the motion and the record of this case, the court grants the motion in part and denies it in part. . . .

. . . The D.C. Circuit has not addressed the meaning of the phrase "initiate contact with a Counselor." Other courts, however, have done so and have adopted the EEOC's interpretation of the phrase. . . . Under the EEOC's interpretation, an employee who believes that she has been the subject of discrimination must timely (1) contact an agency official "logically connected" with the EEO process (not necessarily a Counselor) and (2) demonstrate an intent to begin the EEO process. . . .

This court finds the rationale of the courts that have adopted the EEOC's interpretation to be persuasive and shall do likewise for several reasons. First, the phrase "initiate contact" is ambiguous, and where a regulation is ambiguous, the court should defer to the agency's interpretation. Lane, 2007 WL 2007493, at *4 ("when a regulation is ambiguous . . . courts should defer to an agency's interpretation") (quotations omitted) (citing Christensen v. Harris County, 529 U.S. 576 (2000)). Second, the Smithsonian's position that an employee must directly contact an EEO counselor in order to comply with 29 C.F.R. § 1614.105(a)(1) would inappropriately turn the informal counseling requirement into an unwarranted procedural hurdle. An employee should not be powerless to pursue an EEO complaint simply because she mistakenly reports her complaint to the "wrong" agency employee even though she has every intent of pursuing the EEO process.

[Sovereign Immunity issue]

. . . Thus, the United States argues that because Klugel's invasion of privacy claims arise out of the same nucleus of facts as her defamation claim, it is immune from her invasion of privacy claim as well. The position of the United Sates cannot be sustained.

To determine whether a non-enumerated claim "arises out of" an enumerated claim, the court must examine the actual conduct upon which the claims are based. Kugel v. United States, 947 F.2d. 1504, 1507 (D.C. Cir. 1991) (the court must "scrutinize the alleged cause of [plaintiff's] injury"); Truman v. United States, 26 F.3d 592, 595 (5th Cir. 1994) ("the focus of the inquiry is on the conduct on which [plaintiff] bases her claim."). An examination of the tort claims here reveals that they do not arise from the same underlying conduct. While there are several different kinds of invasion of privacy claims, Klugel alleges invasion of privacy by intrusion on seclusion. That is, she alleges that defendants asked her unreasonable questions about her boyfriend and about her sexuality, and that these questions intruded on her private affairs. This is different than the alleged conduct underlying her defamation claim. The conduct underling the defamation claim is that the employees involved with the Inspector General's investigation wrongly disseminated information about her. While there is some factual overlap between the two claims - both involve information about Klugel - the "partial overlap . . . does not support the conclusion that if one is excepted [under the FTCA] the other must be as well." Block v. North Dakota, 460 U.S. 273, 299 (1983). Therefore, there is no basis to dismiss Klugel's invasion of privacy claim on sovereign immunity grounds.

Alan R. Kabat, Bernabei & Wachtel, PLLC

Supreme Court and False Claims Act

The Supreme Court granted certiorari today (Oct. 29) to the contractor in a False Claims Act case, Allison Engine v. Sanders, on appeal from the Sixth Circuit [United States ex rel. Sanders v. Allison Engine, 471 F.3d 610 (6th Cir. 2006)]. This concerns the presentment requirement of the FCA.

The Sixth Circuit held, in a split opinion, that the FCA applies not only to claims presented by a contractor to the federal government, but also to claims presented by a subcontractor to the prime contractor, even though the latter claims are not directly presented to the federal government. The Sixth Circuit's reasoning was that the government is still defrauded, even indirectly. Judge Ellis (E.D. Va.) reached the opposite result in one of the Iraqi contractor cases (Custer Battles), which is now on appeal to the Fourth Circuit.

An exceprt of the Sixth Circuit's decision is below, and online at:

http://www.ca6.uscourts.gov/opinions.pdf/06a0463p-06.pdf 

The first action (referred to by the parties as the "Quality Case") alleges that the defendants submitted claims for payment despite knowing that the Gen-Sets did not conform to contract specifications or Navy regulations, in violation of the False Claims Act, 31 U.S.C. § 3729(a)(1)-(3). The district court construed § 3729 to require a showing that a false claim had actually been presented to the United States government ("government") for liability to attach. Because relators made no such showing at trial, the court granted judgment as a matter of law to the defendants at the close of relators' case pursuant to Fed. R. Civ. P. 50(a). We can discern no presentment requirement in § 3729(a)(2) or (3), and reviewing de novo, see Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 598 (6th Cir. 2001), we find this ruling to be in error and reverse.

Alan R. Kabat, Bernabei & Wachtel, PLLC

Peach Bottom Whistleblower Profiled in Patriot News

The Harrisburg Patriot News published “Sleeping Called Common at Peach Bottom,” Saturday, October 20, 2007, an article on the whistleblower at Peach Bottom Atomic Power Station. Kerry Beal, a client of the firm, was the man who filmed the security guards asleep on duty between March and August of this year, and has since kept fighting to see change.

The article gives insight into Beal’s life and reasons for stepping forward. “He saw it [guarding the plant] as a statement of patriotism and his devotion to his community and family, inspired by the Sept. 11, 2001, terrorism attacks,” the article says. His gratification quickly dissipated, however, when he witnessed the unnerving practice of the other security guards catching up on their sleep while on the job. “’Oh my goodness, we’re not talking about a nap,’” Beal said, “‘these guys would be asleep like 40 minutes, easily, an hour.’” Beal has withstood threats and anonymous calls to his house, and although it’s unsettling for him, he says he’d do the same thing again given the chance.

Justin Dreyfuss

Nuclear Inattentiveness: Whistleblower Wake-Up in Pennsylvania

On Tuesday, October 9th, the Nuclear Regulatory Commission held a public meeting to announce the conclusions of its investigation at the Peach Bottom Atomic Power Plant -- the investigation touched off by a Bernabei & Wachtel client who blew the whistle on sleeping security guards at the plant. Exelon Nuclear and the NRC presented conclusions of their investigation to a room full of concerned citizens from the local community.  The NRC acknowledged that the problem of inattentiveness was ignored by supervisors even after our client initially raised the issue. The NRC, however, despite interviewing nearly a third of the guards at the plant, did not identify a single incident of sleeping at the plant, other than the four documented by our client. News stories on the meeting can be found at the following links:

http://www.ydr.com/newsfull/ci_7135589

http://ap.lancasteronline.com/4/pa_peach_bottom_alertness

http://www.wgal.com/news/14299224/detail.html

http://www.whptv.com/mediacenter/local.aspx?videoid=126327@video.whptv.com&navCatId=5

http://fox43.trb.com/

Policy & Practice Magazine Publishes David Wachtel's Article

David Wachtel and Sasha Sajovic published “Interactive Process for Hiring the Disabled” in the September 2007 issue of Policy & Practice Magazine. The article focuses on the steps employers and employees must take to identify reasonable accommodations to comply with the American with Disabilities Act. Policy & Practice Magazine is a quarterly publication of the American Public Human Services Association, whose members are Cabinet-level directors and commissioners of state, county and local human service agencies (food stamp, adoption, Medicaid, tribal welfare, child welfare and the like).

D.C. Circuit on EEOC charge filing requirements

The D.C. Circuit issued a good decision, holding that a WMATA employee who filled out an EEOC Questionnaire with an incorrect date of the workplace sexual harassment, and then several months later, filed an EEOC Charge of Discrimination that included the correct date for the harassment, should be allowed to proceed with her Title VII claims. The employer moved to dismiss on the grounds that the EEOC charge (with the correct date) was untimely, and that the EEOC questionnaire was not sufficient to comply with the EEOC charge requirements. The district court agreed with the employer, but the D.C. Circuit, in a concise opinion by Judge Janice Rogers Brown, reversed.

The U.S. Supreme Court is considering a somewhat similar situation in the Federal Express v. Holowecki case, on appeal from the Second Circuit, and being argued on Nov. 6 by David Rose (Rose & Rose, Washington DC).

Some excerpts follow:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200710/06-7174a.pdf

Carter v. Washington Metropolitan Area Transit Authority

Before: HENDERSON, RANDOLPH and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Marissa Carter appeals the district court's dismissal of her complaint, alleging unlawful discrimination by her employer, the Washington Metropolitan Area Transit Authority. Carter contends her completed, but inaccurate, EEOC questionnaire constituted a timely filed charge of discrimination. We conclude Carter's charge was timely. Therefore, we reverse the district court's dismissal of her complaint.

On July 6, 2004, Marissa Carter was allegedly sexually assaulted by a co-worker while working as a subway station manager for the Washington Metropolitan Area Transit Authority (WMATA). Carter immediately reported the incident to her supervisor. WMATA's Office of Civil Rights conducted an internal investigation and found insufficient evidence of sexual harassment. An October 4, 2004 letter from WMATA to Carter reported the results of the investigation and noted Carter's right to file a discrimination complaint with the Equal Employment Opportunity Commission (EEOC).

On October 25, 2004, Carter went to the EEOC and asked to file a charge of discrimination against WMATA. The EEOC gave Carter a "Charge Questionnaire," which she completed that same day. The questionnaire states that "[w]hen this form constitutes the only timely written statement of allegations of employment discrimination, the Commission will . . . consider it to be a sufficient charge of discrimination under the relevant statute(s)." The questionnaire included Carter's name and contact information, identified WMATA as Carter's employer, contained Carter's handwritten description of the alleged incident, and noted that WMATA had conducted an investigation. On the questionnaire, Carter handwrote "4-6-04" and "4-04" as the dates on which she sought and obtained WMATA's assistance in dealing with the assault. She also handwrote "4-6-04" as the date on which the alleged incident occurred.

During her October 25, 2004 visit, the EEOC told Carter to return for a follow-up meeting on the next available date, which was January 20, 2005. Carter claims she had no control over the date of her follow-up meeting. She returned to the EEOC one day early and filed a "Charge of Discrimination" on January 19, 2005. In contrast to the October questionnaire, the January 19, 2005 document correctly listed July 6, 2004 as the date of alleged discrimination.

After receiving a right-to-sue letter from the EEOC, Carter filed a complaint against WMATA in federal district court on October 5, 2005. Her complaint contained a Title VII claim alleging gender-based discrimination. On January 9, 2006, WMATA moved to dismiss, arguing Carter had not filed a charge of discrimination with the EEOC within 180 days of July 6, 2004, as required by Title VII. See 42 U.S.C. § 2000e-5(e)(1). . . .

. . . Both parties agree the alleged incident occurred on July 6, 2004. In fact, WMATA acknowledges Carter simply made a mistake when she wrote "4-6-04" and "4-04" on the EEOC questionnaire.

Since the parties agree July 6, 2004 is the date "the alleged unlawful practice occurred," Title VII required Carter to file a charge within 180 days of July 6, 2004. See 42 U.S.C. § 2000e-5(e)(1). This is, in fact, exactly what she did. Her completion of an EEOC questionnaire on October 25, 2004 fell well within the 180-day filing period that commenced on July 6, 2004. Accordingly, the district court should not have granted WMATA's motion to dismiss.

We reach our holding by applying the plain language of Title VII to the undisputed facts of this case, but our holding is consistent with the statute's spirit as well. WMATA had notice of Carter's allegation from the outset. A significant purpose of Title VII's charge requirement is to notify the employer of the nature of the allegation. See 42 U.S.C. § 2000e-5(e)(1) (establishing the 180-day filing period for charges and requiring that "notice of the charge . . . be served upon the person against whom such charge is made"); EEOC v. Shell Oil Co., 466 U.S. 54, 75 (1984) (explaining that providing an employer notice of a charge "seems to have been designed to ensure that the employer was given some idea of the nature of the charge"). Carter immediately reported the incident to her supervisor; WMATA began its investigation the same day and had completed its review by the time Carter filed her October 25, 2004 questionnaire. WMATA had immediate and adequate notice.

As the Supreme Court recently emphasized in Ledbetter, Title VII's procedural framework-including the 180-day charging period-must be respected. 127 S. Ct. at 2170-72. Indeed, "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Id. at 2171 (internal quotation marks omitted). In this context, we note our decision does nothing to undermine Congress's careful calibration of Title VII's procedures. Carter's October 25, 2004 questionnaire-along with the undisputed fact that the alleged discrimination occurred on July 6, 2004-fulfills the requirement of a filing within 180 days of the alleged discrimination. Accordingly, we reverse the district court's dismissal of Carter's complaint.

Alan R. Kabat, Bernabei & Wachtel PLLC

NBC Questions Sexual Harassment Expert Lynne Bernabei

Lynne Bernabei was interviewed by the NBC Nightly News for the second time in a week. She discussed the high profile sexual harassment suit brought against Knicks head coach Isiah Thomas and the effect of a jury award of $11.6 million to a former top executive of the New York Knicks organization. Lynne said in the interview that this verdict shows that anyone, no matter how powerful, can be held accountable for sexual harassment. The story is entitled, "Isiah Thomas and the Knicks Lose Lawsuit", and the October 2nd video can be found on the Nightly News section of NBC's website: http://www.msnbc.msn.com/id/3032619/

Justin Dreyfuss

Inside NRC Quotes Dave Wachtel in Article on Peach Bottom Whistleblower

Dave Wachtel is quoted in the current edition of Inside NRC, a leading trade publication for the nuclear power industry.  The story describes B&W's client -- the whistleblower at the center of the story -- who was troubled when his supervisors seemed to ignore and discourage his reports of fellow guards sleeping during their shifts.  Our client recorded evidence of the guards somnolence, and a friend -- interceding to help protect our client's privacy -- sent the Nuclear Regulatory Commission a letter about the problem in March 2007.  "Whistleblower Says NRC was Told About Sleeping Peach Bottom Guards," Inside NRC, Page One, (October 1, 2007) (published by Platts -- A McGraw Hill Company).   As Inside the NRC reports, the agency's investigation -- which is still ongoing -- began in September 2007.

Justin Dreyfuss

Lynne Bernabei Appears on NBC News

Lynne Bernabei of Bernabei & Wachtel, PLLC, appeared in a segment by Pete Williams last week on the NBC Nightly News. The piece documented the recent case filed by the Federal Government against Bloomberg, the financial news company. The suit, formally brought by the Equal Employment Opportunity Commission(EEOC), claims that Bloomberg discriminated against pregnant employees and new mothers who had come back to work, expecting to return to their same job. The EEOC says employees were given less responsibility, took pay cuts, were left out of meetings and have had their commitment questioned. Lynne, a highly respected employment attorney, was asked to comment.

The story aired on the NBC Nightly News with Brian Williams September 27, 2007. It can be seen here: http://www.msnbc.msn.com/id/3032076/?ta=y , in the health video's section.

The story is called "More Moms Depressed".

Justin Dreyfuss