ARB CASE NOS. 05-118
ALJ CASE NO. 2004-ERA-023
DATE: October 31, 2007
In the Matter of:
HEATHER ADDIS,
COMPLAINANT,
v.
EXELON NUCLEAR GENERATION
CO., LLC,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
M. Megan O’Malley, Esq., John P. Madden, Esq., O’Malley & Madden, P.C., Chicago, Illinois
For the Respondent:
Donn C. Meindertsma, Esq., Conner & Winters, Washington, D.C.
FINAL DECISION AND ORDER
Heather J. Addis
filed a complaint with the United States Department of Labor alleging that her
employer, Exelon Nuclear Generation Company (Exelon), violated the employee
protection section of the Energy Reorganization Act (ERA or Act). The Act safeguards
employees who engage in certain protected activities from employer retaliation.[1]
A Department of Labor Administrative Law Judge (ALJ) concluded that
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Exelon did
not violate the ERA and recommended that we dismiss the complaint. We accept
the ALJ’s conclusion and deny Addis’s complaint.
Background
The ALJ thoroughly
discussed the facts of this case as presented at the hearing on February 1-4, 2005. R. D. & O. at 2-4. We summarize briefly.
Exelon operates
the Dresden Nuclear Power Station, which is located about 60 miles south of Chicago. Tr. 53. Addis began working at Dresden in 1997 as an emergency preparedness
coordinator. Tr. 48-49. In 2002 she became a shift or unit supervisor, which
is the beginning management level on a shift. Tr. 142. Exelon required that
its shift supervisors keep working files and scorecards on all of their
subordinates. Tr. 672. The working files documented employee strengths and
weaknesses on a weekly basis. Exelon required its supervisors to maintain an 80/20
ratio of positive to negative comments in the working files. Scorecards
identified strengths and gaps in performance on specific tasks. R. D. & O.
at 2; Tr. 669, 673.
Addis had a history
of poor performance in maintaining scorecards and working files. In a February
2003 performance review, David Throne, her first supervisor at Exelon,
characterized her working file entries as “weak” and gave her a rating of “D”
(“Development Needed”) in the categories of “Provides Directions” and “Develops
Others.” Tr. 189-190; RX-10 at 62. In a July 24, 2003 management review meeting, Glenn Morrow, who had replaced Throne as her supervisor, informed her
that her working file entries did not meet the required 80/20 ratio of positive
to negative comments. According to his notes on the meeting, he told her that
if she did not meet the 80/20 ratio of positive to negative comments, she would
be put on a performance improvement plan. Tr. 84-85, 808-809; RX-16 at 46. On
August 16, 2003, Morrow informed Addis that her quarterly scorecard production
was unacceptable. R. D. & O. at 2-3; RX-16 at 47.
There were also
other problems with Addis’s performance. On May 16, 2003, she failed to complete an equipment evaluation in a timely manner. Tr. 816; RX-16 at 6. On August
26, 2003, she did not timely contact the shift manager about an electrical
malfunction alarm and again failed to complete an equipment evaluation in a
timely manner. Tr. 816; RX-16 at 48. On September 25, 2003, she did not
respond promptly to an alarm in the control room, failed to write a clearance
order for the next shift, and did
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not complete a housekeeping “walkdown.” R.
D. & O. at 3; Tr. 817, 820; RX-16 at 49-50.
In his notes for
September 28, 2003, Morrow reported that Addis had not provided her working
files for review, had not updated her Fundamentals matrix as assigned, and had
completed only 10 scorecards of the 19 assigned to her. RX-16 at 50.[2]
He then described a meeting with her on the same day:
At the end of shift
I discussed Heather’s performance with her and [working file] entries
documenting the same. I covered the entries [which] dealt with her inability
to follow direction and lack of alignment with the department and even
confirmed them with entries made by previous Shift Manager earlier in the
year. She stated that she did not feel that the [working file] program is
effective in motivating her to improve her performance. I stated I will
discuss Heather’s issues with the Operations Manager on Monday at 1300 hours.
Heather exited the meeting stating she would hand in her resignation tomorrow.
There was never a statement requiring her resignation or impending plan of
action other than report out to Operations Manager. I only stated that I felt
I was unable to motivate her by requests to perform her expected duties. She
is unusually reluctant to do this. This was reinforced by the preceding
working file entries that demonstrated that Heather appears that she will
supervise on her own terms and not as expected by her Shift Manager.
RX-16 at 50-51. On September 29,
2003, Addis submitted a letter to Morrow, tendering her resignation, effective
on October 10, 2003. R. D. & O. at 3; Tr. 99-100; CX-10.
On October 1,
2003, Addis reported two concerns to Exelon’s Employee Concerns Program (ECP):
(1) upper management operations did not focus on reactor safety, and (2)
supervisors were not allowed to express opinions or concerns without fear of
retaliation. She told Robert Speek, Exelon’s Employee Concerns Investigator
for the Midwest, that she had been reprimanded for raising safety concerns,
which she thought could put a potentially chilling effect on a supervisor’s
raising safety issues. Tr. 105-106; CX-11.
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On the next day,
October 2, 2003, Addis submitted a letter to Morrow rescinding her resignation.
Tr. 113, CX-13. Exelon management did not respond to either Addis’s resignation
letter or her rescission letter until October 10, 2003, when Rich Gadbois,
shift operations supervisor, met with Addis and informed her that her
employment was terminated. Reading from a prepared statement, Gadbois told
Addis that her working files were deficient and that if she had remained with
Exelon, she would have been placed on a performance improvement plan. Tr. 119.
Addis filed a
complaint with DOL’s Occupational Safety and Health Administration (OSHA), on April
5, 2004, alleging that Exelon had discriminated against her in violation of the
ERA’s whistleblower protection provision because she made safety complaints to
the ECP. R. D. & O. at 2; CX-1. After an investigation, OSHA dismissed
the complaint on May 27, 2004, and Addis requested a hearing. R. D. & O.
at 2; RX-2. Following
a hearing, the ALJ recommended that her complaint be dismissed because
she had not established that her protected activity was a contributing factor
in her termination. R. D. & O. at 7. Addis thereafter filed a timely
appeal with the Administrative Review Board (ARB or the Board).
Jurisdiction and Standard of Review
The Secretary of Labor has delegated authority to the ARB to review an
ALJ’s recommended decision in cases arising under the ERA’s whistleblower
protection provision and to issue the final agency decision.[3]
Under the Administrative Procedure Act, the ARB, as the Secretary’s designee,
acts with all the powers the Secretary would possess in rendering a decision
under the whistleblower statutes. The Board reviews the ALJ’s recommended
decision de novo.[4]
It is not bound by an ALJ’s findings of fact and conclusions of law because the
recommended decision is advisory in nature.[5]
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Discussion
The ERA
provides, in pertinent part, that “[n]o employer may discharge any employee or
otherwise discriminate against any employee with respect to his compensation,
terms, conditions, or privileges of employment because the employee . . .
[notifies a covered employer about an alleged violation of [the ERA] or the
Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refuses to
engage in a practice made unlawful by the ERA or AEA, testifies regarding
provisions or proposed provisions of the ERA or AEA, or commences, causes to be
commenced or testifies, assists or participates in a proceeding under the ERA
or AEA].”[6]
To
prevail on her ERA whistleblower claim, Addis must prove by a preponderance of
evidence that she engaged in activity that the ERA protects, that Exelon knew
about this activity, that Exelon then took adverse action against her, and that
her protected activity was a contributing factor in the adverse action Exelon
took.[7]
Even if Addis proves that Exelon violated the Act, Exelon may avoid liability
if it demonstrates “by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of” protected activity.[8]
It is undisputed
that Addis’s report to the ECP about Exelon’s lack of focus on reactor safety
constitutes protected activity and that Exelon knew about her protected activity.
R. D. & O. at 4. The ALJ found that Addis’s complaint to the ECP
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“unquestionably implicated safety.” The ALJ also concluded that Addis failed
to demonstrate by a preponderance of the evidence that Exelon’s refusal to
accept her resignation rescission was adverse action. Although the ALJ could
have dismissed the complaint for failure to establish adverse action, the ALJ
went on to examine whether Addis’s protected activity was a contributing factor
to the alleged adverse action because he found the law unsettled on the issue
of whether an employer’s refusal to accept a rescission of a resignation is
adverse action. R. D. & O. at 5. He concluded that the decision to accept
her resignation was based on her “substandard performance as a unit supervisor”
and not on her protected activity. R. D. & O. at 6-7.
We agree with
the ALJ that Addis failed to demonstrate by a preponderance of the evidence
that the concerns she raised with the ECP contributed to Exelon’s decision to
terminate her employment.[9]
The ALJ’s decision thoroughly and fairly discusses and evaluates the relevant
facts underlying this dispute and correctly applies relevant law.[10]
Accordingly, we adopt and attach the ALJ’s Recommended Decision and Order and DENY
Addis’s complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 42 U.S.C.A. § 5851(a) (West 2007). The ERA
has been amended since Addis filed this complaint. Energy Policy Act of 2005,
Pub. L. 109-58, title VI, § 629, 119 Stat. 785 (Aug. 8, 2005). Even if the
amendments were retroactively applicable to cases filed before the effective
date they are not implicated by the issues raised here. The ERA’s implementing regulations, found at 29 C.F.R.
Part 24, have also been amended. 72 Fed. Reg. 44,956
(Aug. 10, 2007). As explained more fully at note 4, infra, even
if the amended regulations were applicable to this case, they would not change
the outcome.
[2] The Fundamentals are a set of 21 standards
and behaviors that are expected of all Exelon employees. RX-17. Exelon
supervisors use the Fundamentals as a rubric in assessing employee
performance. Tr. 667-668.
[3] Secretary’s Order 1-2002 (Delegation of
Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg.
64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary’s authority to
review cases arising under, inter alia, the statutes listed at 29 C.F.R. §
24.1(a)).
[4] See 5 U.S.C.A. § 557(b) (West 1996);
29 C.F.R. § 24.8 (2006); Stone & Webster Eng’g Corp. v. Herman, 115
F.3d 1568, 1571-1572 (11th Cir. 1997); Berkman v. U.S. Coast Guard Acad.,
ARB No. 98-056, ALJ No. 1997-CAA-002, 1997 CAA-009, slip op. at 15 (ARB Feb.
29, 2000). The ERA’s amended regulations provide for substantial evidence
review of the ALJ’s factual findings. 29 C.F.R. § 24.110(b) (2007).
Substantial evidence is that which is “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21
(1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). As indicated above, even if the Board applied a substantial
evidence review to the ALJ’s findings in this case, such review would not
change the outcome of our decision, because applying the less restrictive de
novo review standard, we agree with the ALJ’s ultimate recommendation that Addis’s
complaint be denied.
[5] See Attorney Gen. Manual on the Administrative
Procedure Act, Chap. VII, § 8 pp. 83-84 (1947) (“the agency is [not] bound by a
[recommended] decision of its subordinate
officer; it retains complete freedom of
decision as though it had heard the evidence itself”). See generally
Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under
principles of administrative law, agency or board may adopt or reject ALJ’s
findings and conclusions); Mattes v. U.S., 721 F.2d 1125, 1128-1130 (7th
Cir. 1983) (relying on Universal Camera Corp. v. NLRB, 340 U.S. 474, 496
(1951), in rejecting argument that higher level administrative official was
bound by ALJ’s decision).
[6] 42 U.S.C.A. § 5851 (a)(1).
[7] See Kester v. Carolina Power & Light
Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 8 (ARB Sept. 30, 2003).
[8] 42 U.S.C.A. § 5851(b)(3)(D).
[9] See 42 U.S.C.A. § 5851(b)(3)(C); Kester, slip op. at 7.
[10] We question, however, the ALJ’s conclusion
“that Addis’s complaints to ECP regarding Exelon’s lack of focus on reactor
safety and a potential chilling effect on supervisor complaints unquestionably
implicated safety.” R. D. & O. at 4. There is
little evidence of protected activity in the record beyond Addis’s general and
vague complaints about safety. “To constitute protected activity under the ERA, an employee’s acts must implicate
safety definitively and specifically.” Makam v. Pub.
Serv. Elec. & Gas Co., ARB No. 99-045, ALJ Nos. 1998-ERA-022,
1998-ERA-026, slip op. at 5 (ARB Jan. 30, 2001); Am.
Nuclear Res. v. U.S. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). In fact, Addis
has not proved that any of her actions were motivated by a belief that Exelon
was violating any nuclear laws or regulations, ignoring safety procedures, or
assuming unacceptable risks. Thus, we cannot conclude that any of Addis’s
actions implicated safety definitively and specifically. However, since there
was no dispute that Addis engaged in protected activity, and
neither party has raised the issue on appeal, we decline to address it further.
