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Whistleblower Recording a “Protected Activity”

A whistleblower’s surreptitious tape recording constitutes a “protected activity” under the Energy Reorganization Act of 1974 (“ERA”), under certain circumstances.

That was the ruling of the U.S. Department of Labor’s Administrative Review Board (“ARB”) on September 28, 2015 after reviewing a lower court’s decision in Franchini v. Argonne National Laboratory.

ARB reversed the earlier decision of the Office of Administrative Law Judges (OALJ), and ordered the nuclear whistleblower case to proceed to an evidentiary hearing on the merits.

Complainant Felipe Franchini was hired in 2000 by Argonne, a company owned by the Department of Energy (“DOE”) where he worked in the High Energy Physics Division. In 2007, Franchini  brought several safety issues to both Argonne management and DOE, including concerns about possible radiation contamination in the facility. According to the company, they followed up on minor safety concerns, and conducted an investigation that did not confirm Francini’s concerns about radiation.

Workplace harassment began shortly after filing the first complaint

In September 2007, Franchini filed a formal written complaint with the company. Shortly after filing his reports, Franchini was issued a written reprimand for the first time in his career with the company.

Franchini again reported safety issues in a March 2008 email to the DOE and an April 16, 2008 formal complaint to the DOE.  On April 23, 2008, Franchini telephoned the DOE to report elevated levels of radiation detected in his work facility due to improper storage of radioactive materials. In this call, Franchini claimed he was being exposed to depleted uranium as a result of the improper storage practices.  According to the company, its subsequent investigation refuted his radiation exposure claim.

Throughout the period of his employment, Franchini made approximately 50 recordings of conversations with coworkers and management personnel at Argonne. Some of these conversations involved Franchini’s work-place safety concerns, and only three of the tapes were made with the knowledge or consent of those involved.

On June 6th 2008 Franchini met with Argonne management to discuss alleged insubordination related to sick leave policies. At that meeting, Argonne asked Franchini if he had recorded any conversations and Franchini confirmed he had made recordings as early as 2004. In the same meeting, Franchini also told Argonne he had taken “numerous pictures of equipment and other items [he] felt related to safety concerns at the Laboratory.” (Franchini said he had anticipated he might need the recordings and photographs as evidence should he have to seek resolution of problems he had identified “outside the Lab.”)

According to Argonne, at the June 6th meeting, Franchini agreed to give them his tapes. According to Franchini, on Monday, June 9th, upon returning to work, he placed the copies of a portion of his recordings, along with a cover letter stating that he needed additional time to copy the balance of the audio tapes in his possession, in an interoffice envelope addressed to Darryl Howe, Argonne’s Employee Relations Manager.

After placing the tapes in the interoffice envelope, Franchini then went on extended sick leave on June 9, 2008.

According to Argonne, neither Hendrick (Harry) Weerts, the HEP Division Director nor Darryl Howe received Franchini’s tapes. On June 13, Weerts sent a written memorandum to Franchini via Federal Express, which Franchini received, informing him that Argonne had not received the tapes, and directing him to bring all recordings to Darryl Howe “when you return to work” from sick leave.

Over the next few months, Franchini remained on sick leave. During this time, he made a number of written communications including filing a supplemental letter of complaint of safety concerns with DOE’s Argonne Site Office, to the attention of Ron Lutha, DOE’s Site Director.

On October 3, 2008, Weerts sent Franchini a written directive by Federal Express instructing Franchini to immediately return his tape recordings, video recordings and pictures. Weerts warned that failure to provide Argonne with the requested materials by October 8th “will be cause for corrective action, including release from Laboratory employment.”

Weerts’s letter was delivered via Federal Express to Franchini’s home on October 6th, but not signed for by Franchini as having been received. The FedEx tracking record indicates that the FedEx package was sent with signature receipt waived. Franchini claims he never received Weerts letter, and that the last written communication he had received from Argonne had been on June 13, 2008.

On October 10, Franchini received a letter of termination from Argonne, citing his insubordination for failing to return the recordings to Argonne.

Workplace recordings are “Protected Activity” when related to the whistleblower’s reported concerns

The ARB held that that “even if Franchini’s refusal to turn over his tapes was a true reason, this conclusion does not rule out protected activity as a contributing factor in the termination of his employment.” The ARB also held that Franchini engaged in protected activity when creating his record of photographs and recordings, because the recordings involved the workplace safety concerns he had reported and the record was made in anticipation of Franchini having to report his safety concerns outside of his employer.

The ARB further noted that – far from being insubordinate for not returning the requested recordings –  the evidence indicates that, based on the last communication he received from Argonne on the subject, Franchini was being scrupulous in avoiding any action that would constitute grounds for again charging him with insubordination.

The ARB also held that, even if an employee agrees to perform an action under the threat of termination—in this case, the turning over the tapes— and later fails to do so, an employer does not automatically have the right to terminate the employee on the basis of the employee’s inaction.

Our take: Recordings and photographs can be powerful evidence to support a whistleblower report of a substantive violation or employer retaliation subsequent to an employee reporting violations. The ARB’s determination that covert recordings are protected activity under the ERA’s whistleblower retaliation provision is good news for government whistleblowers.