The case then was assigned to a new ALJ, who held another evidentiary
hearing and found that FP&L proved that it would have taken the same action even if Saporito
had
not engaged in protected activity. Recommended Decision and Order on Remand (R. D. and O.)
at 32. In a lengthy decision, the ALJ explicitly held that "either of the . . . two
[unprotected]
insubordinate acts itself would have justified . . . Saporito's termination." Id. at 33.
For the reasons discussed below, we agree with the ALJ, and dismiss the complaints.
BACKGROUND
I. Facts
Saporito worked for FP&L from 1982 to December 22, 1988, in various
positions at several of its nuclear and non-nuclear power plants, transferring frequently from one
plant to another and from job to job under the job bidding system of the collective bargaining
agreement. See Respondent's Exhibit (R) 50, attachment 2. Saporito transferred to the
Turkey Point nuclear plant from the St. Lucie, Florida, nuclear plant on April 23, 1988, as an
Instrument and Controls (I&C) Specialist. Id.3
1 The amendments to the ERA
contained in the National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct.
25,
1992), do not apply to this case in which the complaint was filed prior to the effective date of that
Act.
2 The Secretary also denied
FP&L's motion for reconsideration of the Remand Order, noting that the decision did not
preclude
FP&L from proving on remand that it would have discharged Saporito for legitimate reasons
even
if he had not engaged in protected activity. Order, Feb. 16, 1995.
3 Saporito bid on but was not
awarded a transfer back to St. Lucie as an I&C Specialist in May 1988. The position was
awarded
in July 1988 to an employee with less seniority than Saporito, and Saporito filed a grievance over
this denial of job award. See R-50 and discussion in text below.
4 By Saporito's own count, he
had
filed 35 to 40 grievances in approximately six months. T. 1172.
5 INPO was established by the
nuclear power industry to police itself after the Three Mile Island accident. T. 1967.
6 Dr. Dolsey wrote a detailed
letter
to FP&L explaining what happened when Saporito came to his office on December 16, which
corroborates what Odom was told about the outcome of Saporito's visit to the doctor's office. Dr.
Dolsey reported that Saporito "said very vehemently that he would not allow [Dr.
Dolsey]" to examine him. R-115. A union representative, who accompanied Saporito to
the
doctor's office and sat with him in the examining room, confirmed to Odom that Saporito refused
to be examined. T. 1589.
7 In his Remand Order, the
Secretary held that Saporito's attempt to by-pass the employer's "chain of command"
in
favor of speaking directly with the Nuclear Regulatory Commission was protected by the ERA.
Remand Order at 1. See also, Sec. Order, Feb. 16, 1995. However, we note that by the
time
Saporito refused to meet with Odom on November 30, 1988, he had already begun meeting with
FP&L's outside investigators with regard to his safety concerns. The Secretary did not reach the
issue whether an employee, having initiated discussions with the company or the company's
agents
with regard to environmental or nuclear safety concerns, may then abruptly refuse to cooperate in
reporting safety concerns absent unusual intervening circumstances.
8 Saporito argues that he never
explicitly refused to be examined. The record shows that Saporito did not say explicitly
that
he refused to be examined, but his actions in repeatedly asking the doctor questions had
the
same effect. The doctor told the FP&L representative who accompanied Saporito to the doctor's
office that Saporito had refused to be examined and testified to that effect at the first hearing. T.
628-630. Under the circumstances, FP&L was justified in concluding that Saporito had refused
the
examination.