ARB CASE NO. 02-117
ALJ CASE NO. 01-ERA-19
DATE: February 26, 2004
In the Matter of:
VERNON R. BELT,
COMPLAINANT,
v.
UNITED STATES ENRICHMENT CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: John Frith Stewart, Esq., Jeffrey C. Trapp, Esq., Segal, Stewart, Cutler, Lindsay, Janes & Berry, Louisville, Kentucky
For the Respondent: Mark C. Whitlow, Esq., Whitlow, Roberts, Houston & Straub, PLLC, and David Thompson, Esq., United States Enrichment Corporation, Paducah, Kentucky
1 The statute 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" notified a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refused to engage in a practice made unlawful by the ERA or AEA, testified regarding provisions or proposed provisions of the ERA or AEA, or commenced, caused to be commenced or is about to commence or cause to be commenced, or testified, assisted or participated in a proceeding under the ERA or AEA to carry out the purposes of this chapter or the AEA as amended. 42 U.S.C.A. § 5851(a)(1).
2 The ALJ frequently misstates an ERA respondent employer's burden once the complainant has proven a prima facie case at the prehearing or hearing stage of the whistleblower litigation. He states that the respondent "must establish by clear and convincing evidence that it took the unfavorable action for a legitimate, nondiscriminatory business reason, and that it was the same as it would have taken, in the absence of the employee's protected activity." R. D. & O. at 14-15. See also R. D. & O. at 17, 18, 22, 26 (where he also misstates the ERA complainant's burden of proof), and 27. But once a complainant establishes a prima facie case of discrimination, the respondent needs only to "articulate some legitimate, nondiscriminatory reason" to "discharge [its] burden of proof" at this stage of the litigation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The employer's clear and convincing evidence burden is in the nature of an affirmative defense and arises only when the complainant has proven, by a preponderance of the evidence, that the employer discriminated, at least in part, because of protected activity. See Kester v. Carolina Power and Light Co., ARB No. 02-007, ALJ No. 00-ERA-31, slip op. at 8 (ARB Sept. 30, 2003). The ALJ here appears to have confused the Secretary of Labor's gatekeeping, investigative duties with her adjudicative role. Compare 42 U.S.C.A. § 5851 (b)(3)(B) (If, after filing the complaint but before the hearing, an ERA complainant makes a "prima facie" case that his protected activity contributed to the unfavorable personnel action, the Secretary shall not investigate the complaint "if the employer demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of [protected activity].") with 42 U.S.C.A. § 5851 (b)(3)(D)(In the adjudicatory phase of the litigation, if the complainant demonstrates a violation of the ERA, the Secretary may nevertheless not grant relief "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [protected activity]." See also Kester, slip op. at 5-6.
3 The ARB did not assign a separate docket number to USEC's cross-petition for review.
4 The following abbreviations shall be used: Complainant's Exhibit, CX; Respondent's Exhibit, RX; Hearing Transcript, TR; ALJ Exhibit, ALJX; and Recommended Decision and Order, R. D. & O.
5 The ALJ also found that Belt's second complaint concerning USEC's failure to rehire him as a janitor was timely filed. That complaint is not part of this record.
6 The ALJ noted some confusion in the testimony concerning the witnesses' use of the words "title," "position," "work," and "job." He credited the testimony of Pat Jenny that she told Belt his title of fire protection engineer was "going away," but that the work still needed to be done. R. D. & O. at 9. The ALJ also found that Belt misapprehended the reorganization of the plant and that USEC managers did not conspire to trick him into believing he would have no work and therefore get him to "volunteer" for the June RIF. R. D. & O. at 10. In fact, his supervisor at the time tried to talk Belt out of asking to be selected for the RIF—"it makes no sense to volunteer for an involuntary RIF." TR at 299. Further, USEC managers rated Belt as least likely of the eight employees in his department to be riffed. CX 27.
7 Darlene Coffey, then employment manager, testified that the computer printout of Belt's earnings statement showed that he last worked on June 22, 2000. TR at 324; RX 31.
8 A June 29, 2000 memorandum from the personnel director to Belt confirmed Belt's participation in the involuntary RIF and stated that he was being placed on leave until July 14, 2000. Even if this memorandum is considered a final notice of the adverse action, Belt's complaint is still untimely filed. CX 28.
9 The cases Belt cites in support of his argument that the June 22, 2000 memorandum was not final notice and that final and unequivocal notice came only on July 14, 2000, within the 180-day time limit, are inapplicable to this case. In Amini v. Oberlin Coll., 259 F.3d 493 (6th Cir. 2001), the court discussed waiver, estoppel, and equitable tolling in the context of claims untimely filed with the Equal Employment Opportunity Commission. The court declined to suspend the running of the statute of limitations. The record here does not support modification of the 180-day filing requirement under waiver, estoppel, or equitable tolling theories. In Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133 (6th Cir. 1994), the court determined that the three warning letters the complainant received did not constitute final and unequivocal notice of discharge. The warning letters were conditionally phrased; the June 22, 2000 memorandum is not.
10 The ALJ found that "to the extent to which Mr. Belt has attempted to establish that he was terminated as part of the ‘chilled environment' found to have existed in the NRC findings, together with his attempts to link various reactions of management officials to his alleged protected activities, they demonstrate that his is a hostile work environment case." R. D. & O. at 16.
11 The NRC assumed regulatory responsibility for gaseous diffusion plants, which produce enriched uranium, on March 3, 1997.
12 Wimbrow noted Belt's weaknesses: "Performance is inconsistent. Does excellent work and interacts well with others on some jobs. On other jobs, work is incomplete or [he] gets involved in conflicts that require mediation." CX 7.
13 Indeed, Belt's interactions with Smith, who became his supervisor in early 2000, were almost the antithesis of a hostile work environment. Belt testified that he enjoyed working with Smith, who was supportive of him, and that Smith never retaliated against him. TR at 137.
14 Belt testified that after June 22, 2000, he never went back to the Paducah plant, except to check out on July 14, 2000. TR at 396-98.
15 The U.S. Court of Appeals for the Seventh Circuit applied a slightly different standard:
What justifies treating a series of separate violations as a single continuing violation? Only that it would have been unreasonable to require the plaintiff to sue separately on each one. In a setting of alleged discrimination, ordinarily this will be because the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment.
