Case No. 82-ERA-12

In the Matter of

CHARLES A. ATCHISON
    Claimant

    against

TOMPKINS-BECKWITH, INC.
    Respondent

J. Marshall Gilmore, Esq.
PO Box 18
Seneca, Oregon 97873
    For the Claimant

Patrick D. Coleman, Esq.
Mary W. Jarrett, Esq.
Coffman, Coleman, Hanley, and Andrews
PO Box 40089
2065 Herschel Street
Jacksonville, Florida 32203
    For the Respondent

BEFORE: QUENTIN P. MC COLGIN
    Administrative Law Judge

    This is a proceeding under 42 U.S.C. §5851 (the Statute) to

adjudicate a complaint initiated by claimant, Charles A. Atchison (Atchison), against his former employer Tompkins-Beckwith, Inc. (TBI) alleging that tulle latter discharged him because he engaged in conduct protected under the Statute. Claimant alleges that such discharge constituted a violation of the Statute and seeks reinstatement, back pay and attorney fees in accordance with the provisions of the Statute.

    Due to the death of Judge Howard, who presided at the hearing of this matter, the case was reassigned to the undersigned for disposition. The parties were notified of this reassignment and both waived any rights they might have to a rehearing. Thus, this decision is rendered without the benefit of having observed the demeanor of the witnesses during their testimony.

    It is further noted that the employer in this proceeding TBI, timely filed objection to the hearing in this matter without first receiving notice of the matters of fact and law asserted against it. This objection was raised in the form of a motion to dismiss for failure to provide sufficient notice of the claims against the company as required by the Administrative Procedure Act. This motion was summarily denied. While the prehearing procedures utilized in this proceeding did not result in TBI receiving the formal notice contemplated by 5 U.S.C. § 554(b), the record in this case demonstrates that there is no merit to TBI's contention that it lacked a reasonable opportunity to prepare its defense in this proceeding. Prehearing briefs were exchanged by the parties in advance of the hearing. Claimant's prehearing brief sufficiently apprised TBI of the factual basis of the claim and the theories of violation asserted against it. Moreover, the record reveals that TBI's counsel were well prepared to not only meet the matters of fact and law asserted against their client but also present an impressive array of affirmative defenses in support of their client's position.

    As is indicated by the findings set forth in Respondent's Proposed Findings 1-6 which are hereby adopted and incorporated herein by reference, this matter is properly before the Office of Administrative Law Judges, United States Department of Labor pursuant to a timely appeal by TBI if a Department of Labor's Letter of Determination finding a violation of 42 U.S.C. § 5851.

    The basis of Atchison's claim is that in discharging him, TBI violated 42 U.S.C. § 5851(a) which provides:

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) -

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

    (2) testified or is about to testify in any such proceeding or;

    (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

    The parties are in agreement that the Supreme Court's decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), (Burdine), articulates the respective burdens of proof under the Statute. To establish entitlement under Burdine, the employee must initially present a prima facie case by showing that he engaged in protected conduct, that the employer was aware of that conduct and took some action against the employee which was more likely than not the result of the protected conduct.

The burden then shifts to the employer to profer evidence tending to prove that there were legitimate motives for the adverse employee action. Once this intermediate burden is met, the burden then shifts to the employee to show that the proferred, legitimate reasons were pretextural.

    In this case, Atchison, has established that he engaged in activities which were protected under the Statute and that almost immediately after the employer, TBI, learned of these activities, he was discharged. Thus, a prima facie case of discrimination for protected conducted has been made out.

    The specific activities which Atchison engaged in which constituted protected conduct within the meaning of the Statute took place in two discrete time periods. The first took place while Atchison was employed by his previous employer Brown & Root, Inc. Brown & Root was engaged in constructing a nuclear power plant called Commanche Peak near Ft. Worth, Texas. (TR 25) Atchison's protective conduct took place in Mach and early April, 1982 and resulted in his termination by Brown & Root on April 12, 1982. (TR 38-43, CX-I) Atchison's more recent activities which also constituted protected conduct took place on July 29 and 30, 1982 when he testified before the Nuclear Regulatory Commission concerning potential safety problems he had observed at the Commanche Peak facility.

    A unique feature of this case is that both categories of protected conduct involved his previous employer, Brown & Root to the exclusion of TBI. Atchison's earlier activities consisted of him taking action as a quality control inspector for Brown & Root which caused certain non-compliance reports (NCR's) to be issued. Thus Atchison's "whistle blowing" activities adversely affected the direct interests of his previous employer not TBI.

    This circumstance is clearly relevant in considering the possible motivations for TBI's action of discharging Atchison but it does not exempt it from the proscriptions of the Statute. The proof shows that TBI was a sub-contractor of a (nuclear regulatory) commission licensee or applicant. Thus, TBI falls within the specifically enumerated category of employers who "may (not) discharge any employee because..." the employee engaged in protected conduct.

    As was found in the earlier action against Atchison's previous exployer, Brown & Root, Atchison's activities of causing certain NCR's to be issued were the first step in identifying and resolving safety and quality problems in the internal quality control program of an employer engaged in constructing a nuclear power plant. Atchison v. Brown & Root, Inc., 82-ERA-9 (1982) slip opinion at 12, rev'd on other grounds Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), petition for rehearing denied January 2, 1985. Since these procedures are mandated by the Energy Reorganization Act and its implementing regulations such conduct falls within the catch-all provision of the Statute which prohibits discriminating against an employee because the employee "assisted or participated ... in any other action to carry out the purpose of the Act." Mackowiak v. University, 735 F.2d 1159 (9th Cir. 1984); contra Brown & Root, Inc. v. Donovan, supra. Atchison's later conduct was also protected. Giving testimony at the Commanche Peak licensing hearing, as Atchison did on July 29 and 30, falls with the second category of protected conduct enumerated in the Statute. Thus, the Statute applies even though the employee's protected conduct was directed against an entity other than the one which is here charged with unlawfully discharging Atchison.

    The second element requisite to establishing a prima facie case is also present. Newspaper accounts reporting on Atchison's testimony at the Commanche Peak hearing were transmitted to TBI officials at the Waterford III jobsite on Thursday July 29th. One article (CX-7C&D) was then transmitted to TBI officials at the company's headquarters in Jacksonville, Florida by Friday July 30th.(TR 302) These articles included the one transmitted to Florida not only reported on Atchison's testimony at the Commanche Peak hearing but also reported that Atchison had been fired by his previous employer and that Atchison "believ[ed] he was fired for "over-inspecting' areas of the plant." Thus, TBI officials were aware of both categories of protected conduct that Atchison had engaged in by July 30th.

    The third and final element requisite to establishing a prima facie case is also present here. If TBI's officials are to be believed, they knew nothing about Atchison's whistle blowing activities until Thursday, July 29th. On that day, newspaper accounts reporting on Atchison's testimony at the Commanche Peak hearings were sent to the Waterford III jobsite. By the next day, one of the newspaper articles (CX-7C & D) were received and read by Orsini at the company's headquarters in Jacksonville, Florida. That day (Friday, July 30th), Orsini met with TBI's

senior vice-president as well as its general counsel to discuss Atchison. The following Monday (August 2nd) Orsini flew to the Jobsite with Atchison's separation notice (CX-8) "already ... made out." (TR 253) Orsini then summoned Atchison to the fatal termination interview and fired him. Since Monday, August 2nd, was the first day Atchison reported back to work after testimony at the Commanche Peak hearing, it is apparent that he was fired at the first available opportunity after TBI's officials learned of his whistle blowing activities.

    These events strongly support the conclusion made here that more likely than not Atchison was discharged by TBI as a result of his whistleblowing activities. Thus, all three elements requisite to establishing a prima facie case have been made out.

    Having established a prima facie case of discrimination under the Statute, the burden thus shifts to the employer to articulate legitimate, non-retaliatory reasons for the discharge which reasons must be supported by probative evidence. Burdine, supra, 450 U.S. at 255. Once this interim burden is met, the burden shifts back to the employee to show that the proferred reason or reasons for his discharge were pretextural and not the true reasons. The employee can meet this burden either directly by proving by a preponderance of the evidence that a discriminatory reason more likely motivated the employer's decision than did the preferred reason or reasons or indirectly by showing that the preferred reason is unworthy of credence. Burdine, supra, 450 U.S. at 256-57.

    In its brief, TBI argues that Atchison was discharged for two reasons, namely, that he was determined not to be sufficiently qualified nor trustworthy to perform the inspection function he was hired by TBI to perform. (TBI brief at 33-34) Since the arguments and matters of proof cited reveal that TBI's qualification argument includes matters going not only to the issue of whether Atchison met TBI's objective criteria for the Level II inspector position he was hired to perform, but also to the issue whether Atchison was capable of performing such inspection functions, the arguments advanced will be treated as proferring three reasons for discharging Atchison. The first of these is that Atchison was determined to be incompetent or incapable of performing inspection functions irrespective of his qualifications for such position. The second reason is that he was determined to be unqualified in the sense that he lacked sufficient

education, training and experience to meet TBI's existing standards. The third reason is the same as that expressed in TBI's brief, namely, that Atchison was determined to be lacking in trustworthiness.

    The proof establishes beyond doubt that whatever the reason or reasons for discharging Atchison were, they did not include a determination that Atchison was unqualified or untrustworthy. This is clear from the testimony of the TBI official who discharged Atchison. According to Orsini, he made the decision to discharge Atchison. Orsini, who worked at TBI's headquarters in Florida, testified that, he read the newspaper article (CX-7C & D) Friday, July 30th at his office. This article reported on Atchison's testimony at the Commanche Peak hearing. It also reported that Atchison had been discharged by his former employer, Brown & Root, for "lack of ability in performing assigned tasks."; that Brown & Root had appealed a United States Department of Labor ruling requiring it to reinstate Atchison to his job with back pay; that Atchison had lied on his resume when seeking employment with Brown & Root by falsly representing that he had received a Junior College degree when he did not; that he had altered a verification form so that it read "degree obtained" instead of "no degree obtained"; that shortly before he was fired, two safety supervisors had rated Atchison's performance "good" and "excellent" and that Atchison believed he was fired by Brown & Root for "over-inspecting areas of the plant." (CX-7C & D)

    Before coming to the Waterford III jobsite the next Monday, Orsini secured a copy of Atchison's resume. Additionally, it appears that he was informed that Atchison told Manger, TBI's recruiting agent, that the former had been terminated by his last employer (Brown & Root) as a result of a reduction of force whereas the newspaper articles reported that he had been fired for cause.

    Armed with this information, Orsini flew to the jobsite and confronted Atchison Monday afternoon in what will be described here as the termination interview. The interview focused solely on the issue of the cause of Atchison's termination by his former employer. Thus, by Orsini's own account of the interview:

... I sat down with Mr. Atchison, wanted to know why he had left his former employer. And when Mr. Atchison came into the office where I was

talking to him, he had brought with him a large expandable file and alot of papers. He started reaching into the file and was heading off into a direction that there wasn't going to be an answer to my question.

So I stopped him, and I said, "Mr. Atchison, tell me why you left your former employer." And again he seemed to be evading my question.

So I asked him a third time, probably a little bit more forcefully, and he told me that he had been terminated by Brown & Root by the QA Manager at Brown & Root for inability to perform his assigned functions.

Q. Alright. What did you then do?

A. I told Mr. Atchison at that time that I was unwilling to accept an inspector on my payroll who had been terminated from his last employer for inability to perform his job, since I was looking for him to perform the same job. (TR 437-38)

    Thus, by Orsini's own account of the interview, Atchison was never given an opportunity to explain or even comment upon the information Orsini had which related to the issues of Atchison's qualifications and trustworthiness. This is confirmed by the Orsini memorandum reporting on the termination interview (RX-12) dictated after the interview as well as the separation notice (CX-B) which was prepared by Orsini prior to the termination interview and given to Atchison at such interview. (TR 253, 292) This latter notice states as a reason for leaving the employment of TBI: "Reason for separation from last employer unacceptabe."

    Thus, the evidence overwhelmingly establishes that Orsini consciously rejected consideration of Atchison's qualifications and trustworthiness in reaching the decision to discharge him. Therefore, such reasons are rejected here as well.

    Turning now to the remaining proferred reason for discharging Atchison, namely, that he was determined to be incapable or incompetent to perform the Level II inspection duties he was hired to perform, it is found that such reason is unworthy of credence and is therefore rejected. The proof supporting this preferred reason is the testimony of Orsini and the memorandum he prepared (RX-12) after he fired Atchison. In essence, Orsini maintains he fired Atchison upon learning that the latter had been fired by his previous employer for inability to perform his assigned functions. Orsini reasoned that since Atchison was performing the same inspection functions for Brown & Root that he was hired to perform for TBI, and since he was found by his previous employer to be unable to perform those functions, he could not be relied upon to perform such functions for TBI either.

    The conclusion Orsini claims to have reached concerning Atchison's perceived lack of ability to perform inspection functions is simply unjustified by the circumstances then confronting Orsini. The newspaper article which was Orsini's primary source of information reported ambiguous if not contradictory evaluations, of Atchison's capability. While on the one hand the article reported that Atchison was fired by his previous employer for "lack of ability" it also reported that his supervisor had rated his performance good and excellent shortly before he was fired. The article also presented a possible ulterior motive for Brown & Root's actions,, namely Atchison's claim that he had been fired for over-inspecting.

    Faced with. these unresolved charges and counter chargers, Orsini made a single, unsuccessful attempt to communicate with Brown & Root officials concerning the circumstance resulting in their discharging Atchison. However, it was reported to Orsini that the Brown & Root people refused to comment because the matter was in litigation. This constituted the only effort. Orsini made to secure information going to Atchison's capabilities other than the information he elicited from Atchison. Orsini did not communicate with his own employee, Halstead, who was supervising Atchison during the orientation period nor did he make any effort to communicate with officials of the Department of Labor to secure information about their reported action in ordering Brown & Root to reinstate Atchison to his job.

    As is apparent from Orsini's own account of his interview with Atchison, the former would not to let Atchison present any

information other than to confirm Brown & Root's slated reasons for firing him. These actions do not represent a conscientious attempt to evaluate the conflicting claims going to Atchison's capabilities as an employee.

    Furthermore, Orsini's explanation of why he wouldn't consider or even hear the information which Atchison tied to present to him is beyond comprehension. Orsini claims that he didn't want to consider the information Atchison tried to present to him because he (Orsini) didn't believe himself qualified to evaluate the information preferred. Yet, the effect of not permitting Atchison to offer his explanation was to decide Atchison's fate without adequate information from any source. Given the obvious nature of the controversy that existed between Atchison and his previous employer, as well as the dearth of conflicting facts which Orsini acted on, no dispassionate manager, motivated by legitimate concerns of maintaining a capable work force could be expected to take the action that Orsini did. His actions are far more consistent with that of a person who is predisposed to fire an employee for reasons other than the reasons Orsini ascribed.

    For these reasons, Orsini's explanation is found to be unworthy of credence and is therefore rejected as the reason for discharging Atchison. Thus, all three reasons advanced by TBI for discharging Atchison are rejected and the inference of discriminatory motive created by the establishment of a prima facie case obtains.

    TBI raises certain matters either as affirmative defenses or in mitigation of its damages. First TBI argues that Atchison should be denied the remedy of reinstatement because of his misconduct (dishonesty) and because of his lack of job qualifications.

    TBI's argument going to Atchison's alleged misconduct or dishonesty is set forth at pp. 45-48 of its brief. While the specific conduct Atchison is claimed to have engaged in that constitutes misconduct or dishonesty is not there specified, it is presumed that TBI is referring to the conduct specified at page 39 of its brief which is cited for the proposition that Atchison "has woven a web of deceit and dishonesty in his previous employment

and in his employment with Tompkins-Beckwith."

    With respect to his previous employment, TBI refers to Atchison's misrepresentations while employed by Brown & Root concerning his academic achievements and his alteration of a college record made to perpetuate such misrepresentation. With respect to his employment with TBI it is claimed that Atchison:

- Provided a resume and job certifications from his previous employer listing him as having a college degree he admittedly does not have, thus lying about his job qualifications (Tr. 36);

- Lied to Jerry Magner concerning the reason for his termination from his previous employer, claiming he had been terminated as part of a reduction in force when he was actually discharges for cause (Tr. 283); and

- Listed coursework in radiological monitoring at Weatherford Junior College. The Company's contact with the College reflected that the College had no record of Mr. Atchison (Tr. 458).

    These three claims will first be examined separately to determine if the record supports a determination that Atchison made material misrepresentation concerning his background to TBI. Then the misrepresentations that are shown to have been made will be examined in light of Atchison's previous history of misrepresentations.

    The record shows that contrary to TBI's claim, Atchison did not provide TBI with a resume which mispresented that Atchison had a college degree. The record shows that Atchison submitted two copies of his resume to TBI officials and representatives. The first copy was mailed to TBI Agent Jerry Magner responsive to the classified ad Magner had placed on TBI's behalf. The second resume was given to Don Holstead by Atchison when the former met with the latter at the interview at the Dallas-Ft. Worth airport on July 25. The record shows that both copies had been corrected

by Atchison to accurately relect that Atchison had earned 23 hours of college credit. (TR 133, 163)¹ Neither copy of the resume, contained a representation that Atchison had earned a junior college degree or any other college degree.

    The evidence confirms TBI's claim that Atchison provided copies of job certifications from his previous employer which listed him as having an associates degree in liberal arts from Tarrent County Junior College. However, the nature of these documents and the circumstances wherein they were submitted to TBI show that they were not submitted to misrepresent Atchison's academic background to TBI.

    Copies of what are referred to as the Brown & Root certifications are in evidence as RX-2. They consist of seven pages each of which represent a certification by a Brown & Root official of Atchison's accomplishments such as a determination that he is qualified for a particular position as that he had received specific training. These documents were prepared and maintained by Brown & Root as a part of their program to document the qualifications and experience of their employees. Most of these certifications show that Atchison had earned an associates degree in liberal arts. Thus, the certifications contained a representation concerning Atchison's educational background which was false and which Atchison knew to be false. By providing copies of them to TBI, Atchison can be said to have republished the false information to a prospective employer unless he took steps to correct the false impression that otherwise would be created by the documents. The evidence shows that he did precisely that.

    Atchison testified that he did not feel he could change what was written on the certifications because they were documents prepared and certified to by officials of his former employer Thus, any attempt to correct or alter the certifications would have subjected Atchison to the accusation that he had altered documents prepared and certified to by others. The record shows that while Atchison did not correct the certifications, he did the next best thing. In each of the two instances when he provided TBI copies of the certifications, he also provided copies of his resume which had been corrected to accurately state his college background - 23 credit hours.

testified that Atchison's point deficiency was even greater than the one point deficiency shown on the form. Richardson's reasoning is that Atchison was given too much credit in two categories of the evaluation. First, Richardson testified that Atchison was not entitled to the 12 point credit he was awarded in the education category because his educational background only warranted a value of either five or ten points depending on whether Atchison's 23 hours of college credit represented technical courses or general courses. (TR 387, 402) Second, Richardson testified that Atchison was awarded too much credit in the experience category. More specifically, Richardson testified that Atchison was not entitled to the 12 points assigned to him for one year's experience in the field "QA/QC Nuclear" because his actual experience as a QA/QC nuclear inspector with Brown & Root was only four months.² (TR 387) Thus, Richardson concluded that Atchison "was way under the [58 point] required for Level II (TR 388) and could not be reinstated to that position under the company's established policies. (TR 389)

    The validity of Richardson's reasoning is, however, dependent upon the correctness of the underlying assumption that the other factors comprising Atchison's aggregate quantitative evaluation are constant or, at least, would not be increased in evaluating Atchison's qualifications for the Level II position. This assumption is demonstratively invalid.

    The July 27 evaluation show on its face that it evaluates and certifies Atchison for the Level I position requiring a 32 point aggregate score which was the interim position he held until he completed the orientation program and demonstrated his qualifications to perform at the higher level. The July 27 evaluation also shows on its face that additional factors not considered in evaluating a Level I candidate are considered in evaluating a Level II candidate namely, the factors outlined in RX-3 Criteria 4B. Since an evaluation of these additional factors could result in increasing Atchison's proficiency evaluation from 6 to 20 points and since this would correspondingly increase his aggregate score, it simply cannot be said that Atchison cannot qualify for the Level II position until such time as he has been evaluated on the basis of these additional factors. Insofar as it is shown in this record, no such further evaluation has taken place. Indeed, such further evaluation would appear to be premature in that Atchison was discharged before he completed the TBI orientation program. Presumably he

    Thus, the more reasonable interpretation of the July 27 evaluation is that it is not dispositive on the issue of Atchison's qualifications for the Level II position. Rather, it was a preliminary evaluation of Atchison who obviously met the requirements for the position he then held, namely, the Level I position. This would explain the absence of any evidence showing any consideration having been given to any of Atchison's work experience acquired prior to his employment with Brown & Root which might have entitled him to additional points.³ It would also explain the absence of any evidence showing any consideration having been given to determining if any of the 104 hours of training Atchison received while employed by Brown & Root entitled him to any additional points under the applicable training category of the evaluation. (RX-2, RX-3, Criteria 3B)

    Finally, this interpretation of the July 27 evaluation best explains why TBI did not ascribe Atchison's claimed lack of qualifications as a reason for discharging him. All the evidence presented here supporting the conclusion that Atchison did not meet TBI's standards was known to TBI's officials when Atchison was discharged (August 2). More particularly, Richardson claims to have discovered the one point deficiency in the July 27 evaluation on July 28th. The issue of Atchison's qualifications was made known to Orsini by July 30th. (TR 432) As is evidenced by Orsini's memorandum of August 2, information that Atchison did not receive a college degree and that his prior inspection duties encompassed only four months instead of a full year, had been received by Orsini if not also Richardson by the time the termination interview took place of August 2nd. (RX-13) Despite all this information, a reason other than Atchison's lack of qualifications was assigned for discharging him. Assuming their rationality, such action by these officials is frankly incomprehensible unless these officials could not conclude from the information they had available to them that Atchison did not and could not meet TBI's established qualification standards.

    For these reasons, TBI's argument that the remedy of reinstatement is inappropriate, is found to be unsupported by substantial evidence and such argument is rejected.

¹On his resume, Atchison claims "six to eight years general experience in QA/QC functions." (CX-15) Atchison's testimony that he corrected the resume he gave to Holstead to reflect 23 hours of college credit instead of 123 hours (TR 133) is preferred over the testimony of Holstead who claimed that the resume he secured from Atchison showed 123 Credit hours. (TR 165) Holstead's testimony is not construed as emphatically stating that he had a specific recollection of seeing 123 credit hours listed on the resume he was given whereas Atchison's testimony is emphatic on this point. The essence Holstead's testimony is that 123 credit hours must have been listed on the resume, otherwise Holstead would not have "plugged ... in" the 12 points for a college degree which Holstead assigned to Atchison on the TBI certification checklist. (TR 166-65, RX-3) The better explanation for Holstead's "plugging in" the 12 points for a college degree was provided by another TBI official, Richardson, who explained that Holstead likely relied upon the Brown & Root certification and not the resume for determining that Atchison had earned an associates degree in liberal arts. (TR 231-41)

² If the last year of Atchison's over three years of employment with Brown & Root did not entitle him for 12 points for a year's experience as a "QA/QC Nuclear", then the question remains as to whether he would be entitled to either 10 points or 8 points for QA/QC non-nuclear experience. See RX-3, Criteria 2B & C.

³ On his resume, Atchison claims "six to eight years general experience in QA/QC functions." (CX-15)