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| September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
Office of Administrative Law Judges 1111 20th Street, N.W. Washington, D.C. 20036 Case No. 80-ERA-1 In the Matter of
RONALD A. KING
v.
TENNESSEE VALLEY AUTHORITY
Appearances:
Ronald A. King, pro se
Maureen H. Dunn, Esq.
Before: EVERETTE E. THOMAS
Statement of the Case This is a proceeding under the Energy Reorganization Act of 1974, as amended (42 U.S.C. § 5851), hereafter called the Act. The Act (42 U.S.C. § 5851(a)) prohibits a Nuclear Regulatory commission (NRC) licensee from discharging or discriminating [Page 2] against an employee who has commenced a proceeding to carry out the purposes of the Act. The Act is implemented by regulations designed to protect so-called "whistle-blower" employees from retaliatory or discriminatory actions by their employers. 45 Fed. Reg. 1836 (January 8, 1980) (to be codified at 29 C.F.R. Part 24). An employee who believes that he or she has been discriminated against in violation of that section may file a complaint within 30 days after the violation occurs. Ronald A. King, Petioner, filed a Complaint dated November 27, 1979, with the Department of Labor against the Tennessee Valley Authority (TVA), Respondent, with whom he had formerly been employed as a painter at the Sequoyah Nuclear Plant. Petioner alleges that he was refused re-employment because he had filed complaints against TVA with the Nuclear Regulatory Commission on three separate occasions. The Wage and Hour Division conducted an investigation and concluded that Mr. King had not been discriminated against in violation of the statute. That decision was appealed to the Department of Labor. Pursuant to a notice issued February 4, 1980 a hearing was held on February 19, 1980 in Knoxville, Tennessee. Petitioner was not represented by counsel at the hearing, although he was advised of his right to representation. Both parties were afforded full opportunity to be heard, to adduce evidence and to examine and cross-examine the witnesses. At the close of the hearing the court requested briefs from both parties. Counsel for TVA submitted a post-hearing brief, and Mr. King submitted statements on his own behalf written by himself and James Farrow, President of Painters Local Union 226. Based upon the entire record, including my observation of the witnesses and their demeanor, and from all of the testimony and evidence taken at the hearing, I make the following findings and conclusions:
1. The Respondent TVA is a licensee of the Nuclear Regulatory Commission, licensed by the Federal Government to build nuclear plants. 2. Ronald A. King was employed by TVA in August of 1974 [Page 3] as a painter at the Sequoyah Nuclear Plant in Daisy, Tennessee. His duties included painting and sandblasting. On July 11, 1978 he was fired for bringing a firearm onto the project in violation of a posted job rule. 3. On August 29, 1979 a grievance hearing concerning the propriety of the termination was held at Mr. King's request, at which time he admitted openly that he had brought a gun onto the grounds of of Sequoyah Nuclear Plant. Testimony was given to the effect that it was TVA policy and practice to uniformly discharge any employee who violated this rule, regardless of the reason given for the violation. Management stated that this was the sole reason for Mr. King's discharge. Prior to the hearing Mr. King refused a settlement offer which would have allowed him to be rehired after 90 days. Petitioner failed to prove that he had been the target of unusual treatment or discrimination on the part of management, and his discharge was ultimately upheld. Petitioner did not appeal this decision. It is the findings of this court that Mr. King was discharged for cause, and has already been afforded the opportunity to be heard on this issue. 4. Four months after his discharge, on November 10, 1978 Petioner applied for re-employment at the Sequoyah Nuclear Plant and was rejected. According to Petitioner, he was given no reason for the refusal, but merely told to get off the project premises. 5. Approximately one year later on November 7, 1979 Petitioner was again turned down when he applied for employment at the Sequoyah project. Jere M. Ballentine, the power plant supervisor, stated in his letter to Petitioner on December 5, 1979 that the decision not to select him for employment was based on his prior termination arising out of the firearm incident. He specifically disavowed that the decision had been influenced in any way by correspondence Petitioner had had with the Nuclear Regulatory Commission, and stated that his first knowledge of such correspondence occurred when Petitioner enclosed copies of his letters to the NRC with his November 14, 1979 letter to Ballentine. 6. Petitioner's third application for re-employment with TVA occurred on November 26, 1979 at the Watts Bar Nuclear Plant. [Page 4] He was turned down again, and told the reason was his "O-3" classification. The Personnel Director at TVA, Mr. Joe Erpenback, testified that this classification is used on TVA's monthly employment suitability lists, to alert the employing office that a former employee was previously discharged, or resigned just prior to discharge. Mr. Erpenback further testified that an "O-3" classification is not a bar to future employment. 7. On his fourth application, in February of 1980, Petitioner was finally rehired by TVA as a painter at its Watts Bar Nuclear Plant. 8. Prior to his discharge, Petitioner had on several occasions complained to the NRC about the quality of certain work being performed at the Sequoyah Nuclear Plant, which he believed might violate the NRC's standards imposed on nuclear power plants the reason given for the violation. Management stated that this was the sole reason for Mr. King's discharge. Prior to the hearing Mr. King refused a settlement offer which would have allowed him to be rehired after 90 days. Petitioner failed to prove that he had been the target of unusual treatment or discrimination on the part of management, and his discharge was ultimately upheld. Petitioner did not appeal this decision. It is the findings of this court that Mr. King was discharged for cause, and has already been afforded the opportunity to be heard on this issue. 4. Four months after his discharge, on November 10, 1978 Petioner applied for re-employment at the Sequoyah Nuclear Plant and was rejected. According to Petitioner, he was given no reason for the refusal, but merely told to get off the project premises. 5. Approximately one year later on November 7, 1979 Petitioner was again turned down when he applied for employment at the Sequoyah project. Jere M. Ballentine, the power plant supervisor, stated in his letter to Petitioner on December 5, 1979 that the decision not to select him for employment was based on his prior termination arising out of the firearm incident. He specifically disavowed that the decision had been influenced in any way by correspondence Petitioner had had with the Nuclear Regulatory Commission, and stated that his first knowledge of such correspondence occurred when Petitioner enclosed copies of [Page 5] his letters to the NRC with his November 14, 1979 letter to Ballentine. 6. Petitioner's third application for re-employment with TVA occurred on November 26, 1979 at the Watts Bar Nuclear Plant. He was turned down again, and told the reason was his "O-3" classification. The Personnel Director at TVA, Mr. Joe Erpenback, testified that this classification is used on TVA's monthly employment suitability lists, to alert the employing office that a former employee was previously discharged, or resigned just prior to discharge. Mr. Erpenback further testified that an "O-3" classification is not a bar to future employment. 7. On his fourth application, in February of 1980, Petitioner was finally rehired by TVA as a painter at its Watts Bar Nuclear Plant. 8. Prior to his discharge, Petitioner had on several occasions complained to the NRC about the quality of certain work being performed at the Sequoyah Nuclear Plant, which he believed might violate the NRC's standards imposed on nuclear power plants through their quality assurance program. Petitioner was specifically concerned that the protective coating required to be painted on the piping system inside the plant was inadequate and not up to specifications. In response to these reports, the NRC sent personnel to make on-site inspections. Letters were sent to Mr. King by the NRC on February 7, 1979 and May 26, 1978 giving the results of those inspections. In essence, although the painting in the plant was found to be deficient in the ways described by Mr. King, the NRC did not find that the careless painting effected the health and safety of the public, and according to their rules no actual violations had occurred. The letter from the NRC on May 26, 1978 also mentioned that they had notified the U.S. Occupational Safety and Health Administration (OSHA) concerning the portion of Petitioner's Complaint which dealt with worker safety. Although OSHA acknowledged receipt of the complaint on August 14, 1978, there is no indication in the record as to whether a violation was ever found. 9. The issues to be determined in this case are:
[Page 6]
1. The statute which gives rise to this proceeding protects employees from discriminatory action directed toward them as a result of certain endeavors to pursue its enforcement. Section 5851(a) of 42 U.S.C. provides, in pertinent states as follows:
[Page 7] This section was enacted November 6, 1978, four months after Petitioner's discharge by TVA. I find nothing in the Act which indicates that this section is to be applied retroactively to persons whose employment ended prior to the enactment of the statute; likewise I find nothing to indicate that this section is to be applied to former employees who were discharged for cause. Petitioner attempted to raise the issue of his July 11, 1978 termination from TVA at the hearing, but the issue is not properly before the court. As stated previously in the findings of fact, Petitioner had the opportunity to contest his termination at a grievance hearing. This court has found that he was discharged for cause, specifically, for a firearm violation. The threshold question, is whether Petitioner is an "employee" entitled to coverage under the Act. The regulations protecting so-called "whistle blower" employees from discriminatory actions by their employers under six federal acts, including the Energy Reorganization Act of 1974, are found in 45 Fed. Reg. 1836 (January 8, 1980). Section 24.3 of the Regulations states as follows:
Petitioner filed his Complaint with the Department of Labor on or about November 28, 1979, sixteen months after his discharge from TVA employment. In his Complaint Petitioner admits that he was discharged for carrying a gun an the project. The language of the statute clearly refers to a person who is an "employee", not to an individual who is seeking to become employed. I conclude that Petitioner does not have standing as an employee under the Act to challenge TVA's refusal to rehire him. 2. Even if Petitioner had been found to be an employee entitled to protection under the Act, the implementing regulations state that a complaint shall be filed within 30 days after the occurrence of the alleged violation. Petitioner was discharged [Page 8] on July 11, 1978, four months prior to the enactment of the statute and sixteen months prior to the filing of his Complaint with the Department of Labor. Petitioner's three unsuccessful attempts at re-employment occurred November 10, 1978, November 7, 1979 and November 26, 1979. Clearly only the past two incidents can be considered timely raised by the Complaint, and Petitioner is without standing to raise them. 3. Finally, even if Petitioner were determined to be a protected employee who had timely filed a Complaint, his allegations of discrimination by TVA have not been substantiated in the record, and his claim would fail for lack of merit. The Complaint mentions the various reports Petitioner had filed with the NRC and OSHA, and briefly describes Petitioner's unsuccessful attempts at applying for re-employment. Petitioner states that he was informed that he was not re-hired because he was a "troublemaker", and implies that this alleged blacklisting was a result of his complaints to the NRC. There is no persuasive evidence in the record to indicate that the TVA officials involved in the employment process considered Petitioner's NRC complaints in reaching their decision not to re-hire him. Personnel officers testified that such complaints are not made a part of an employee's record, and that they did not have knowledge, or have reason to have knowledge of these complaints. Petitioner's personnel record and TVA's employment suitability lists did alert the employment offices of Petitioner's prior "discharge for unsatisfactory conduct in the work area." On the first three occasions, other available applicants were deemed more qualified than Petitioner, and were preferred for employment. On the fourth occasion the applicant pool was smaller, and Petitioner was re-hired. It is the opinion of the court that the decision of TVA officials not to re-hire Petitioner in the first three instances was based on legitimate management decisions, and not on any retaliatory motives caused by the complaints Petitioner filed with the NRC.
[Page 9]
It is therefore recommended that this Complaint be dismissed for lack of jurisdiction over the person of Mr. Ronald King, for the reason that he is not an "employee" entitled to protection under 42 U.S.C. 5851.
EVERETTE E. THOMAS
Dated: March 28, 1980
EET:jer
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