# Amicus Curiae Brief — English v. General Elec. Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 72

## Text

: |] . Supreme Court, U.S,
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No. 89-152 JOSEPH F. SPANIOL, JR,

In The
SUPREME COURT OF THE UNITED STATES
October Term, 1989

VERA M. ENGLISH, et al,
Petitioner,

Vv.

GENERAL ELECTRIC COMPANY, et al,

Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE
THE GOVERNMENT ACCOUNTABILITY PROJECT iN
SUPPORT OF PETITIONER

Louis A. Clark
(Counsel of Record)

Thomas E. Carpenter

Edward A. Slavin, Jr.

Richard Condit

Sandra Peaches

Government Accountability Project
25 E Street, NW Suite 700
Washington, DC 20001
202-347-0460

\ ' Table of Contents

: } INTEREST AND EXPERTISE OF AMICUS CURIAE .
in tek, SUMMARY OF ARGUMENT ................-- 2
f ae ae 7 . 238, 248 (1984).

12 See, Cai. Lab. Code Ann. §1102.5 (West Supp. 1989);
Cal. Gov't. Code $§10540-10551 (West 1980); Conn. Gen. Stat.
Ann. §31-51m (West Supp. 1988); La. Rev. Stat. Ann. §30:2027
(West 1987); Me. Rev. Stat. Ann. tit. 26 §§831-40 (1988);
Minn. Stat. Ann. §§ 181.931-.935 (West Supp. 1989); Mont.
Code Ann. §§39-2-901 to -914 (1987); NJ. Stat. Ann. $§34:19-1
to -8 (West 1988); N.Y. Lab. Law §740 (McKinney 1988); Pa.
Stat. Ann. tit. 43, §§1421-28 (Purdon Supp. 1988).

14

In particular, Section 210 has a Draconian 30-day
statute of limitations, which the Secretary of Labor
interprets harshly.’ Section 210 does not provide for
punitive or exemplary damages, does not involve a jury,
does not allow for full discovery rights, and is given
limited review by 2 Court of Appeals. The advantages
of the statute to whistleblowers is its purported speedy
and inexpensive remedy.’4

Furthermore, Congress did not create any new,
special administrative body that would support 1
inference that 42 U.S.C. §5851 was intended to be the
exclusive means of enforcing the ERA. Instead, the

ee am,

13 This is nowhere more true than in the present case,
where the Petitioner filed a complaint with the Department of
Labor, went through a hearing and received a favorable
judgment, only to have that result thrown out by the Secretary
of Labor on the basis of an untimely filed complaint. The
Petitioner had filed a complaint after her layoff, as opposed to
her transfer by the company which did not affect her salary or
benefits. In our view, the Petitioner relied, to her detriment,
upon the good faith representations of the company to find her
other work. By finding that such employees must file a
complaint within thirty days of any act that could possibly be
construed as discriminatory encourages, even necessitates, a
flood of premature complaints.

14 The alleged advantage of expedited judgments is
overstated. Most complaints that survive initial actions to
dismiss take far more than the statutorily mandated 90 days to
resolve. A study of timeliness for Labor Department litigation
in the 275 whistleblower cases between fiscal years 1982 and
1989 revealed that the agency failed to meet the statutory
ceadline for resolving such cases in a large percentage of cases,
sometimes by as much as 800 days and more. See, 134 Cong.
Rec. $1447 (daily ed. Feb. 25, 1988)(Testimony of the
Government Accountability Project at 103, 109).

.

15

agency designated to enforce Section 210, the
Department of Labor, also resolves a myriad of other
labor disputes and was in existence well before the
passage of Section 210.

Consequently, no interference with the nuclear
regulatory scheme is evident from permitting states to
exercise their traditional right to regulate the employer-
employee relationship. To rise to the level of
completely eliminating a state’s right to regulate the
employment relationship, the federal regulation would
have to be truly pervasive. Bush v. Lucas, 462 U.S. 367
(1983). Even where comprehensive legisiaiive schemes
have been put in place to regulate lebor and
management relations, state tort actions against the
employer for damages arising out of the employment
relationship have been permitted. Lingle v. Norge
Division of Magic Chef, 486 U.S. 399, 108 S.Ct. 1877
(1988).

C. Congress Did Not Intend to Shrink Whistleblower
Remedies

The central issue for whistleblowers is whether in
passing Section 210, Congress intended to encourage
disclosures by expanding protections, or discourage
dissent by shrinking employee rights. There is simply
not a scintilla of evidence -- only speculation -- that
Congress intended Section 210 to be substitutive, not
additive. By determining that a comprehensive federal
scheme existed in 42 U.S.C.§5851, thereby barring any
state claim lest frustraiion of the federal policy occur,
the court below failed to consider the fundamental

16

purpose of these sections -- further preiection of the
employee against retaliatory discrimination. The
legislative history of Section 210 demonstrates the clear
and manifest intent of Congress to increase employee
protection. Senate Report No. 95-848, 95th Cong., 2d
Sess.29, reprinted in 1978 U.S. Code Cong. & Ad. News
7303. Further, the Fourth Circuit conceded this fact.
English v. GE, 683 F. Supp. 1006, 1012-13
(E.D.N.C.1988) aff'd per curiam, 871 F.2d 22 (4th Cir.
1989).

It would inardly enhance employee protection for
Congress to eliminate state-based rights under tort law
providing for jury trials and punitive damages. As
Chief Justice Rehnquist has written, our Founding
Fathers considered the right to jury triai "an important
bulwark against tyranny and corruption." Parklane
Hosiery v. Shore, 439 U.S. 322, 343-44 (1979)(Rehnquist,
J., dissenting). Since the right to a jury trial is a
cornerstone of common law and state constitutions,
Congress would not have lightly abolished American
citizens’ rights to jury trials in fifty states without
debate, sub silentio./°

Neither would Congress have lightly abolished the
right to punitive damages in appropriate cases. In this
case, two different legislatures exercised their discretion

‘S The tort of intentional infliction of emotional distress
is a question of state and not federal law. Further, it is clear
that the tort of wrongful discharge is an area equally subject to
State regulation. Lingle v. Norge Division of Magic Chef, Inc.,
108 S.Ct. 1877, 100 L.Ed. 410 (1988)(wrongful discharge is a
State tort remedy, within the traditional police powers of the
States).

17

noi to foreclose plaintiffs’ rights to punitive damages
(as well as to jury trials): the U.S. Congress and the
North Carolina state legislature. The United States
Congress did not exercise its power of federal
preemption. The North Carolina legislature and its
State courts have likewise declined to adopt an
exclusive remedy rule in cases of federal administrative
remedies. Yet the courts below, acting as a "super-
legislature," abused their discretion to do what the two
legislatures declined to do.

The state of North Carolina had the chance to
abolish the application of its tort of intentional infliction
of emotional distress to whistleblowers protected by
Section 210 and other federal laws. North Carolina has
done nothing to diminish these rights to tort actions
and jury trials, although it was within its sover?ign
powers.’ North Carolina has a powerfully compelling
state interest in allowing for jury trials ard punitive
damages. As General Electric has demonstrated in its

‘6 Other states have exercised their discretion to adopt
exclusive remedy ruies; see e.g., Walsh v. Consolidated Freightways
278 Or. 347, 351-53, 563 P.2d 1205, 1208-09 (1977)(no tort
because OSHA remedies adequate to protect interests of
employee and society); Corbin v. Sinclair Mktg., 684 P.2d 265,
267 (Colo Ci. App. 1984)(Colorado public policy exception to
“employment at will” does not apply to employees with statutory
remedy); Gyzb v. Evans, 700 S.W.2d 399, 401 (Ky.
1985)(aggrieved party limited to statutory remedy); Salazar v.
Furr’s, Inc., 629 F. Supp. 1403, 1409 (D.N.M. 1986)(no claim for
relief for wrongful discharge where another remedy provided by
Statute); Allen v. Safeway Stores, 699 P.2d 277, 284 (Wyo.
1985)(no need for court-imposed tort action if another remedy
exists).

18

brief, the availability of punitive damages can be a
powerful incentive to comply with the law, and a useful
tool for courts to accomplish the same goal. The
principle was first recognized in the time of George ITI,
when punitive damages were allowed to punish abuse
of authority. Huckle v Money, 95 Eng.Rep. (K.B.1782).

Juries are permitted to award punitive damages
based on the defendant’s culpable state of mind or
abuse of power. Dobbs, Remedies (1973) at 204-6. In
North Carolina, punitive damages are allowed in cases
of “malicious, wanton and reckless" actions and
"reckless and criminal indifference to [plaintiff'sj rights."
Cotton v. Fisheries Products Co., 181 N.C. 151, 106 S.E.
487 (1921).

The district court reasoned that since two other
whistleblower protection laws (15 U.S.C. §2622(b)(2)(B)
and 42 U.S.C. §300j-3(i)(2)(B)(ii)) contained punitive
damage award provisions, and therefore Congress
"reached an informed judgment" that in no
circumstances should a nuclear whistleblower receive
punitive damages." English v. GE, 683 F.Supp. 1006
(E.D.N.C. 1988). This ignores the reality that
development of whistleblower legislation by Congress
has been a piecemeal project, with particular industries
or substantive areas of concern addressed ad hoc, one
at a time. Congress has been inconsistent in adopting
whistleblower legislation. The consultant to the
Administrative Conference of the United States wrote:

Over a dozen federal laws attempt to
protect whistleblowers from retaliation
in wide areas cf private sector activity

19

where health and safety are at stake.
These laws, which protect both public
and workplace health and safety
interests . . . have created a crazy quilt
of investigative, adjudicatory and review
responsibilities . ... These discrepancies
reflect vagaries of the legislative process
-- legislation has addressed various
industries on an _ incremental or
piecemeal basis over time ...

Eugene R. Fidell, "Federal Protection of Private Sector

Health and Safety Whistleblowers,” 2 Administrative
Law Journal 1, 2,4 (1988).

The Administrative Conference of the United States
in reviewing federal whistleblower protection concluded
that "this lack of uniformity does not appear to be
reasoned, but most likely reflects the incrementa.

enactment of the various statutes over a period of
years." 1 C.F.R. § 305.87-2./7

»

'7 As the advocates of the ABA resolution on

whistleblower protection argued to the ABA House of
Delegates:

Current federal law, a series of scattered provisions, is
confused and inconsistent; this happened largely because
Congress adopted the emplovee protection statutes one
at a time. These procedural complexities would be
climinated with passage of tt omnibus bills now
proposed, which follow recommendations made by the

Adminisirative Conference of the United States
(ACLS).

(continued...)

20

Congress’ omission of punitive damage awards in
Section 210 does not indicate any intent to preempt
punitive damages under state law, only an inconsistency
among whistleblower _ statutes fraught with
inconsistencies, universally criticized by commentators
and the focus of current legislative initiative. A minor
inconsistency is hardly the stuff of which federal
preemption is hewn, particularly when preemption
would adversely affect rights ot citizens who happen to
be nuclear workers in fifty states.

Several pieces of legislation have been introduced
in recent years marking a concerted effort by Congress
to enhance the protections affcrded to employees in
the private sector when they report on matters within
their employment that may affect public health and
safety. These initiatives are in large part the result of
recommendations of the Administrative Conference of
the United States (ACUS) and the recognition that
employees in important industries such as aviation, food
processing, nuclear weapons, health care, and others
have no minimum federal protection in place to protect
them when they seek to report problems within those
industries.

One of the first bills designed to address the issue
of across the board minimum federal protection for all
private sector employees was the Uniform Health and
Safety Whistleblowers Protection Act. Introduced as

17(__. continued)
Report and Recommendation to the ABA House of Delegates
accompanying Resolution 125, supra, footnote 8 at 3.

ie an. _

21

S.2095, the overall purpose of the bill was descrived
by Senator Howard Metzenbaum, (D.Ohio):

Private sector employees shouid feel free to
report illegal or improper activities that endanger
the public health or safety without fear of
personal reprisal. It is a fundamental principle of
good Government to encourage citizens to report
illegal activities to the proper authorities.
Especially when public health and safety is at
stake, individuals who are willing to report
unlawful, hazardous practices to avert a disaster
should be honored as heroes. Instead, in too
many cases, their reward is to be fired, harassed,
demoted, or blacklisted by their employers.

134. Cong. Rec. S1447 (daily ed. Feb. 25,
1988)(statement of Sen. Metzenbaum). Notably, S.2095
sought also to clairfy the very issue being addressed by
this Court today. In Section 8(a) drafters of the bill
emphasized that the remedies provided would not
preempt state law remedies. Instead, the remedies

provided would seek to supplement state-based rights
and remedies.

Mos. recently, bitis have been introduced in both
Houses of Congress again designed to provide wide
spread minimum protections for private sector
employees. This proposed legislation (S.436 introduced
in the Senate and H.R. 3368 introduced in the House)
is entitled the Employee Health and Safety
Whistleblower Protection Act. In his statement defore
the Senate Subcommittee on Labor, Senator Charles
Grassley, (R.lowa) a co-sponser of S.436 stated:

22

Mr. Chairman, as you know....during my service
in the Senate I have championed the rights of
Whistleblowers who disclose waste and fraud in
the Federal Government. My work has led me to
conclude that whistleblowers perform a valuable
public service. Without their disclosures, we
would not begin to know where to find waste
and inefficiency.

W'iistleblowers face enormous obstacles in their
efforts to expose waste and correct that
wrongdoing. Our system rewards these employees
with the most unfair prizes- like discharge,
demotion, and unwanted transfers. They risk
their careers as well as reputations in the interest
of honest Government, and they do so
reluctantly.

*_*s ee *&£ *& &

So, Mr. Chairman, in summary, the employees
who bring health and safety violations to public
light deserve our thanks. At a minimum we need
to ensure their careers are secure. This bill sends
an important message to employers, employees,
and the American public at large: Violations of
health and safety standards, like Federal waste
and fraud, will not and cannot be tolerated. And
we need to rely on courageous employees to
help us make sure that Federal standards are
met.

Testimony of Senator Charles Grassley before the

ORO

23

Subcommittee on Labor of the Senate Committee on
Labor and Human Resources, 101st Congress, March
7, 1989, pp. 37-39.

Again, S.436 and S.2095 attempt to rectify the
unwarranted confusion in the courts on the issue of
federal preempticn by specifically indicating that the
bills will supplement not supplant state based rights and
remedies. See, Section 8(b) of S.436 and H.R. 3368.

"All laws should receive a sensible construction,"
avoiding "injustice, oppression, or an absurd
consequence." United States v. Kirby, 74 U.S. (7 Wall.)
482, 486-87 (1869). With neither legislative history nor
statutory language hinting at any intent to abolish either
the process of jury trials, or any state law remedies, it
would be "absurd" to assume that Congress would have
intended such "injustice {jaud] oppression." Jd. Jury
trials and punitive damages vindicate individua! rights
and are important safeguards of the liberty of the
individual. "The liberty of the individual must be
scrupulously protected ... no rule of construction
necessitates our acceptance of an_ interpretation
resulting in patently absurd consequences." United States
v. Brown, 333 U.S. 18, 27 (1947). Denying employees
their right to jury trials in state court actions is "not
within [the law’s] spirit, nor within the intention of its
makers." Holy Trinity Church v. United States, 143 U.S.
457, 459 (1892).

In sum, the groundswell for whistleblower protection
gained momentum once Congress took affirmative steps
to shield employees in the mine industry in 1968. See,
M. P. Glazer & P. M. Glazer, The Whistleblowers --

24

Exposing Corruption in Government and Industry (1989)
at 65-66. In its infancy, federal whistlebiower protection
naturally developed slowly and cautiously. It has
developed to the point where generic legislation to
protect all private sector safety, health and
environmental whistleblowers is pending in Congress.
S. 436; H.R. 3368 (101st Cong., 1st Sess.). Those bills
explicitly provide that there is no federal preemption of
State remedies, making clear Congress did not intend to
wipe out state law liability.

D. Case Law Supports a Finding of No Preemption

This analysis is consistent with the prevailing trend
of case law deciding whether federai whistleblower
Statutes preempt state remedies. State and federal
remedies are complementary, not conflicting. For
instance, in the FMSHA, 30 U.S.C. §815(c)(1988), two
courts have addressed the issue. In Wiggins v. Eastern
Associr ed Coul Co., 357 §.E.2d 745 (W.Va.1987) the
West Virginia Supreme Court found that the
whistleblower protection codified in the statute was
inadequate .is a matter of law, and therefore did not
preempt state remedies. But see, Olguin v. Inspiration
Consolidated Copper Co., 740 F.2d 1468 (9th Cir.
1984)(FMSHA was adequate, so preemption found).

One court has held the Clean Air Act (CAA)
whistleblower provision, 42 U.S.C. §7622 (1988) does
not preempt state tort suits. Phipps v. Clark Oil and
Refinery C..., 396 N.W.2d 588 (Minn.Ct.App. 1986) aff'd
408 N.W.2d 569 (Minn. 1987). In Phipps, the CAA
whistleblower protection provision was found not to

sn sens te

25

preempt state law claims in that state law simply
advanced the declared Congressional purpose of
protecting employees from retaliatory discharges.

Section 210 cases reach similar holdings. In
Wheeler v. Caterpillar Tractor Co., 108 Ill. 2nd 502, 485
N.E.2d 372, 376 (Ill. 1985) cert. denied, 475 U.S. 1122
(1986), the court held that there was no preemption
because Congress. in enacting Section 210, did not
intend such a result. Also see, Gaballah v. PG&E, 711
F.Supp. 988 (N.D. Cal 1989), finding Section 210 does
not bar a state court action based on state law, as
"[t]here is no apparent reason why Congress should
have wanted to bar persons who complained about
safety violations from a jury trial and the recovery of
punitive damages but not to bar persons who suffered
injuries from those violations." 711 F. Supp. at 990.
Accord, Norris v. Lurnbermen’s Mut. Casualty Co., 881
F.2d 1144, 1151 (1st Cir. 1989)("no good reason for
barring state remedies to whistleblowers" but "allowing
punitive damages under state law" to those injured in
nuclear accidents that might not have occurred if
whistleblower’s complaints had been investigated"). But
see, Chrisman v. Phillips Industries, Inc., 242 Kan. 772,
751 P.2d 140 (1988).

Clearly Section 210 is an elective remedy afforded
by Congress and not meant to be all-encompassing.
Siokes v. Bechtel N. Am. Power Corp., 614 F. Supp.
732,744 (N.D. Cal. 1985)(Section 210 supplements state
protection for nuclear whistleblowers).

The Department of Labor is the agency with

26

expertise in Section 210 complaints; the Department of
Labor has also held that the Section 210 remedy is not
an exclusive remedy, and that there is no federal
preemption of state law tort suits. This is evidenced by
the Secretary of Labor’s ruling that dismissal of a
Section 210 complaint should be without prejudice, so
that such a dismissal will not preclude a state court
action. See, e.g., Nolder v. Ramond Kaiser Engineers,
Inc., No. 84-ERA-5 (D.O.L., June 28, 1985).

This Court defers to the reasonable interpretation of
the agency to which Congress has delegated authority.
Chevron, U.S.A. v. NRDC, 467 US. 837, 844
(1984)(considerable weight should be accorded to an
executive department’s construction of a statute it is
entrusted to administer.) See also, United States v.
Turkette, 452 U.S. 576, 580 (1980); Udall v. Tallman,
380 U.S. 1, 16 (1965); McLaren v. Fleischer, 256 U.S.
477, 480 (1921). As this Court held in Udall v.
Talmann:

When faced with a problem of statutory
construction, this Court shows great deference to
the interpretation given the statute by the
officers or agency charged with its administration.

380 U.S. at 16 (1965). Amicus respectfully asks this
Court to give such deference to the view of the
Solicitor of the Department of Labor, who has filed a
brief in support of the Petitioner, Vera English.

ee ee ee ee

4 aes tn

27

CONCLUSION

If Vera English had been subjected to the type of
outrageous behavior alleged in her complaint in a non-

nuclear portion of GE’s Wilmington, North Carolina
plant, there would be no question but that she could
proceed in state court to vindicate her rights. As
Petitioner aptly states in her brief, intentional infliction
of emotional distress is a matter properly regulated by
the state in order to preserve civilized relations among
its citizens, and to punish wrongdoers. It would indeed
be ironic if, simply by virtue of an employee performing
the public service of reporting unsafe nuclear
conditions, that employee were deprived of her rights.
It would not take long for that type of interpretation to
defeat Congress’ intent of encouraging disclosures.

Moreover, the rights and interests of a state in
protecting the economic interests of its citizens will be
better served by allowing it to encourage reporting of
safety problems through maintaining remedial
protections. It is up to the Congress, not the courts, to
“rethink the division of regulatory authority" and to

28

decide whether state remedies provided for employees
covered by the ERA "undercut[s] a federal objective."
Pacific Gas & Electric Co. v. State Energy Resources
Conservation & Development Comm., 461 U.S. 190, 223
(1983).

Respectfully submitted,

Louis A. Clark
Counsel of Record

Of Counsel:

Thomas E. Carpenter
Edward A. Slavin, Jr.
Richard Condit
SarJra Peaches

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A13. Public record. Not legal advice.