Last month, in Evans v. United States Environmental Protection Agency, ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), the Administrative Review Board (ARB) of the U.S. Department of Labor issued a decision rejecting heightened pleading standards previously announced by the U.S. Supreme Court in favor of a lower pleading standard for whistleblower complaints filed before the Occupational Safety and Health Administration (OSHA) and the DOL’s Office of Administrative Law Judges (OALJ).
In Aschroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the Supreme Court held that a plaintiff’s complaint must allege sufficient facts to state a claim “that is plausible on its face” in order to withstand a motion to dismiss. In its recent decision in Evans, the ARB rejected this “plausibility” standard, instead holding that administrative whistleblower complaints only need to “give fair notice of the protected activity and adverse action” in order to survive a motion to dismiss. Additionally, the ARB held that such plaintiffs are afforded “sufficient opportunity to amend or supplement” complaints which do not initially meet the “fair notice” threshold for sufficiency of complaints.
Factual and Procedural History
The plaintiff, Douglas Evans, worked as an Environmental Protection Specialist for the U.S. Environmental Protection Agency (EPA) and, in 2004, complained to the EPA Administrator alleging that the Agency had forced employees to engage in emergency response duties without the necessary experience and had assigned hazardous job duties to employees who did not have such duties in their prior job descriptions. The EPA then suspended Evans in 2006 alleging that he had made threats of violence at work. Following his suspension, Evans filed a complaint with OSHA claiming that the EPA had retaliated against him in violation of several federal laws. Evens subsequently filed numerous amended complaints, each of which alleged further retaliation actions by the EPA in response to his initial complaint.
In 2008, An Administrative Law Judge (ALJ) dismissed Evans’ complaint, holding that Evans’ had not alleged facts sufficient to demonstrate that he engaged in any protected conduct. The ARB affirmed this ruling in 2010 holding that Evans’ complaint failed to state a claim sufficient under the standards of Iqbal and Twombly standards. Following the ARB’s dismissal, Evans sought a review from the Ninth Circuit Court of Appeals but the Ninth Circuit remanded the case for the ARB to decide the applicability of the Iqbal and Twombly pleading standard to OSHA whistleblower complaints.
ARB Adopts “Fair Notice” Standard, Notes “Materially [Different]” Nature of Administrative Whistleblower Complaints
In articulating the applicable standard for OSHA whistleblower complaints, the ARB noted that the “plausibility” standard required of complaints in federal court “materially differs” from administrative whistleblower complaints. The ARB noted that such whistleblower complaints “are informal documents that initiate an investigation”, are “often filed…without the assistance of counsel”, and that OSHA regulations “expressly allow for investigatory complaints to evolve into complaints containing [a] prima facie claim.”
In short, the ARB concluded that because the Iqbal/Twombly standard previously applied by the ARB was “inappropriate given the nature of the administrative whistleblower process”, the ARB’s revised ruling concluded that such complaints that give “fair notice” of the protected activity and adverse employment action are sufficient to withstand a motion to dismiss for failure to state a claim.”
The ARB further articulated the de minimis detail required, holding that:
“a sufficient statement of the claims need only provide (1) some facts about the protected activity, showing some “relatedness” to the laws and regulations of one of the statutes in our jurisdiction, (2) some facts about the adverse action, (3) a general assertion of causation and (4) a description of the relief that is sought.”
Greater Opportunity for Whistleblowers to Amend Administrative Complaints
On the issue of amending OSHA whistleblower complaints, the ARB emphasized the “need for an ALJ to liberally provide a whistleblower complainant an opportunity to amend” and that such an assessment “must be conducted in a manner consistent with informal administrative proceedings.” Specifically, the ARB held that the “ALJ should not dismiss a complaint for failure to state a claim until he or she has allowed the complainant a sufficient opportunity to amend or supplement the claim(s) contained in the complaint.” The ARB then remanded the case as the ALJ had not granted Evans such an opportunity to amend his complaint.
Impact on Whistleblowers
The ARB’s new standard will potentially make it easier for whistleblowers to bring retaliation claims under one of OSHA’s 21 statutes. Additionally, employers may now find it more difficult to get the complaints of whistleblowers dismissed for being insufficiently plead. The Evans decision is a procedural expansion in tandem with the ARB’s recent expansion of substantive protections for whistleblowers.
The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.