Wells obtained an
enforcement order
of the Secretary's remedial order in the United States District
Court, which was affirmed in Kansas Gas and Electric Co. v.
Brock , 780 F2d 1505 (10th Cir. 1985). Exhibit C-4.
Issues
I. What is the appropriate burden of proof the parties
must bear in a wrongful discharge case?
[Page 3]
II. Was the claimant's termination of employment a
violation of the provisions of 42 U.S.C. 5851?
III. Was claimant reinstated to his former or a
substantially equivalent position, and, if not, was said
failure in retaliation for his previous activities under
the Act?
It is noted that KG&E still questions whether Wells was
engaged in a protected activity at the time of the filing of
his original complaint. KG&E Brief at 5. This question was
raised and argued by KG&E before the Secretary and the Circuit
Court, and decided on in favor of Wells. No more needs to be
said on this matter.
Statement of Facts
Wells returned to work at KG&E in October of 1984. He
was not given his position as quality assurance inspector,
but, instead, he was assigned as an inspector trainee in a
company warehouse. In this position, Wells inspected incoming
equipment for quality and compliance with specifications. His
findings were turned over to a supervising inspector, who
reviewed the work and entered the final sign-off. With time
and training, Wells was to become a regular inspector.
Management gave two reasons for this assignment: the work
that Wells had been doing in quality assurance was about
complete, and there were no quality assurance inspection jobs
in the electrical field; and, at that time, the company was
having a problem at the warehouse and needed temporary help.
Wells' work confined him to the receiving area of the
warehouse during his working hours.
On his return to the plant, Wells was able to work, with
the clearance he had on his previous job, but this was to
change on the final walk-down (inspection) and receipt of
nuclear material at the plant. Regulations of the Nuclear
Regulatory Commission (NRC) require that employees in operating
plants be screened for psychological fitness for "unescorted
access". In anticipation of the change in security requirements,
KG&E arranged to have Wells tested at the Wichita
Clinic for his suitability to work in the nuclear plant.
Wichita Clinic is a facility offering general medical
[Page 4]
services. It has been used by KG&E for a number of years for
the physical examinations, and the health needs of its
employees. When the need for psychological testing arose,
KG&E turned to Wichita for evaluations of the Minnesota
Miltiphastic Personality Index (MMPI) which were given at
the plant. Initially, the tests were evaluated by Doctor
Allen, a contractor with Wichita, but in about May of 1984,
Wichita took on Doctor Charles L. Schalon, a clinical
psychologist, as an associate. Walter Nelson, the general
manager of administrative services at KG&E, invited Doctor
Schalon to the plant, and provided him with a tour of the
facilities.
Nelson arranged for Wells to take the MMPI on October
30, 1984, at the Wichita Clinic. Doctor Schalon administered,
scored, and evaluated Well's test, and met with him for a
discussion of the results. The test scores showed that Wells
was overly defensive. This raised questions about the usefulness
of the test protocol, and tended to skew the results.
During the interview, Schalon discovered factual information,
which seemed to confirm the excessive defensiveness shown in
the MMPT: Wells questioned the test scores, and findings; he
disclosed that he had been involved in four fights during
his adult life; he had lost a stripe in the army during one
altercation with a higher rank; and, he refused to allow
Schalon to release his test scores before he consulted with
his attorney. Schalon was disturbed by Wells's attitude,
and, on the whole, found his to be abrasive, hostile and
offensive.
A confidential memorandum was prepared by Wichita over
Shalon's name on October 30, 1984, the day of the test:
A review of our records indicated that a written
psychological examination (MMPI) for the above
named individual was scored by Charles L. Schalon,
Ph.D., of the Wichita Clinic, in accordance with
generally accepted and professionally recognized
scoring criteria.
I certify that this individual's scores were
within an unaccptable range to grant escorted (sic)
access to Wolf Creek Generating Statoin.
ACCESS IS NOT RECOMMENDED.
[Page 5]
Exhibit C-18.
Wells repeated the MMPI test for Schalon on November
2, 1984, and he was interviewed on the 6th. The second test
raised additional areas of concern for Schalon. He saw a
profile that indicated the possibility of problems with drugs
and alcohol (McAndrews score); and, he saw tendencies to
bruskness, abruptness, and antagonism (O score). Transcript
at 419. After the interview, Schalon spoke with Nelson, and
recommended that Wells be rehired provisionally. Nelson
declined: Wells would have to be totally cleared for unescorted
access to the plant or denied. Schalon felt that he would
need personal background information on Wells. Nelson asked
that he put his request in writing, which was done and an
investigation proceeded.
At that time, KG&E had in its possession Wells' background
information covering his entire life to August 1983. This
had been obtained in connection with his first employment at
the plant. Nevertheless, another investigation was conducted
to up-date the information from 1983 to December 22, 1984.
Exhibit D-9. These data were furnished to Schalon on January
3, 1985. The later data covering education, finances, health,
alcohol-drugs, and community standing and were generally
complimentary. Under the heading of criminal, there was a
notation of a fine for a stop sign violation. Schalon,
ignored the complimentary information, and selected information
from the earlier background check on Wells that tended
to support the conclusions he drew from the MMPI. In those
reports he marked, and underlined parts that showed: one
employer would not recommend rehiring; another found his job
performance unsatisfactory; a college was unable to locate
any record of his attendance; one investigator found there
was conflicting information regarding his reliability and
dependability; that he lost his temper occasionally, but was
not violent.
On the other hand, there was information in the reports
that Wells was honest, concerned for others, athletic, and in
general, he enjoyed a good reputation in the community. Most
employers were satisfied with his work. And, all inquiries
regarding drug and alcohol abuse were negative.
[Page 6]
Concurrent with the KG&E test, Wells was examined by
Doctor Timothy S. Sippola, a clinical psychologist. He
reported that he administered the MMPI test on October 30,
1984, and he interviewed Wells on the 15th of March, 1985.
The interview disclosed: that Wells left one nuclear power
plant after a dispute with management over quality control
issues; he had never been denied clearance before; that he
graduated second among fifteen in Army missile training
school; that he was awarded outstanding trooper of the 82nd
Airborne; that he was "busted" from E-4 to E-3 after verbal
argument with a higher rank; that he was honorably discharged
from the Army; that he had been charged with minor criminal
offenses but (except for speeding) he was found innocent.
In his report, Sippola noted that Wells was well dressed,
neat, friendly, cooperative, and intelligent. He discussed
the MMPI scores in detail, and concluded:
Mr. Wells' guardedness with Dr. Schalon may
be viewed more as a reflection of his cautiousness
about being interviewed when he had already been
fired by Dr. Schalon's contractor. None of the
defensiveness reflected in Mr. Wells' MMPI validity
scales' scores taken for KG&E was in evidence on the
administration of the MMPI given in my office on
October 30, 1984.
Mr. Wells' tenacity in the face of opposition
by management may be understood as the result of a
healthy skepticism, of authority, a willingness and
capacity to take a stand, even an unpopular one,
optimism in the face of a challenge, and adherence
to his own set of values to avoid the feelings of
emptiness and despair that come to those who lack
a sense of integrity and do not identify with
values and principles beyond themselves. His
superiors stands out as a quality to be valued,
when his job necessarily entails the discovery and
revelation of errors in design, sloppy workmanship,
and failures to comply with regulations, all contrary
to the short-term economic and timeliness interests of
his employers.
In summary, the data and interview results do not
warrant the denial of Unescorted Access clearance.
Exhibit C-9.
[Page 7]
After the final walk-down, around December 4, the nuclear
operation began, and tighter security measures went into
effect. Wells had no clearance for unescorted access. He
was provided with an escort that accompanied him throughout
his day at the plant. His escort met him at the plant entrance
in the morning, and stayed with him all day even on trips to
the lavatory. No one was happy with this arrangement, least
of all the escort. The regular employees resented having to
devote time to escorting Wells, and because of the close
attention given him by KG&E, their freedom of movement was
also curtailed. Areas that had been open to the employees
were now restricted.
There were other problems. On a number of occasions,
Wells set off the alarm at a securty checkpoint indicating
that he was carrying contraband. A search of his clothing
revealed nothing and he was passed through. There was no
explanation for these incidents except Wells speculation that
the equipment was new and needed adjustment. His escort was
embarrassed by these events, and especially because of the
annoyance Wells expressed to the guard. The escorts were
also concerned and embarrassed by having to accompany to the
on-site NRC office.
From the beginning, Wells' supervisor perceived
disciplinary problems; He refused to sign a Volt Electric
time card, and insisted that he was an employee of KG&E.
Transcript at 550. On January 1, 1985, one of the supervisors
prepared a list of charges against Wells based on the
complaints of fellow employees, who were extremely concerned
about what was happening at the warehouse. Transcript at 558.
This document was "sent to file" and thereafter discussed at
a meeting of supervisors. The concensus of that meeting was
that Wells should be reprimanded, and if he did not take
corrective action he should be terminated. A reprimand
letter was prepared on January 2, 1985, and given to Wells
either on that or the following day. Exhibit D-11. After the
letter of reprimand was prepared, Wells was called to a
meeting to discuss the charges. Transcript at 566.
At the meeting with his supervisors, Wells either denied
the charges contained in the letter of reprimand, or he down-
[Page 8]
played them. Transcript at 561. Wells' specific comments
could not be recalled, Transcript at 562, and the informants
were not produced to support the charges.
There was evidence on only two of the charges given at
trial. One of the employees described an incident in which
Wells threw a utility knife after it slipped and cut his
leg. This witness testified that the knife slammed against
cabinets, and flew over his head. Other testimony by this
witness, described Wells' disruptive behavior in the security
search area.
It appears that the complaints against Wells were
communicated to Schalon. On January 11, 1985, he wrote the
closing paragraph on Wells' employment at KG&E:
On the basis of information on the above-
named individual between dates of October
30, 1984, and January 3, 1985, it is my
opinion that said individual should not
be granted unescorted access to the Wolf
Creek generating statemnt (sic).
UNESCORTED ACCESS IS NOT RECOMMENDED.
With so little evidence regarding the charges, and the
discussions at the meeting between Wells and his supervisors,
Wells was called by the Court to testify to the matters. He
was questioned about the charges.
It was alleged that Wells had made threats against a
supervisor. The threats were overheard by a leading inspector,
and reported to the supervisor. Transcript at 557-558.
Wells recalled the threat as "something to do with smashing
the back of his face or smashing his face through the back of
his head or something along that line". Transcript at 606.
Wells denied making a threat.
Wells' version of the knife incident differed from that
given by the company witness. He said that he cut his leg as
he was opening a box with a utility knife. He threw the
knife down onto the floor, and it slid under his desk and
then under another desk. It did not leave the floor, and it
was no danger to other employees. Transcript at 608.
[Page 9]
A former personnel department employee of KG&E, under
general manager Nelson, testified to the hiring practices at
KG&E during her employment, which ended in August, 1984. All
pre-employment tests were administered by her at the plant
including MMPI, utility helper, advanced helper and clerical
tests. Transcript at 265. The MMPI test scores were sent to
the Wichita Clinic, for evaluation. Nelson regularly had
conversations with Doctor Allen regarding the tests. The
witness testified that Nelson occasionally altered test
scores to achieve hiring goals. Transcript 266, 274. She
worked for Nelson at the time of the trial on the original
discrimination charge brought by Wells. She testified that
at the end of the hearing, Nelson was upset over the way KG&E
witnesses testified. After a loud session with one of the
witnesses, Nelson said to her: "The son of a bitch didn't say
what he was to supposed, to say". And because of Reaves and
Rudolf (sic) Wells looked good now. On cross examination,
the witness admitted to being a friend of Wells. She resigned
from KG&E because of harrassment and discrimination by Nelson.
Conclusions
Wells complains that he was fired on January 11, 1985,
because he engaged in a protected activity reported safety
violations during his previous employment at the KG&E plant
in violation of section 5851 of the Act, which provides in
part:
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 [42 U.S.C.A.
§ 2011 et seq.] or a proceeding for the
administration or enforcement of any requirement
imposed under this chapter or the Atomic Energy
[Page 10]
Act of the 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 [42 U.S.C.A.
§ 2011 et seq .]
The employer maintains that he was terminated because he
was not approved by the screening psychologist for unescorted
access to KG&E's Wolf Creek Nuclear Plant. KG&E Brief at 7.
Another view, and the heart of the matter, is that KG&E
did not comply with the orders for reinstatement of Wells,
and more importantly it did not then, and does not now have
any intention of reinstating him as ordered. A review of the
evidence, and the inferences that flow from the evidence
illustrates that the rehiring of Wells in October of 1984 was
token compliance with the remedial order of the Secretary,
and his firing on January 11, 1985 was pretextual.
Generally, in wrongful discharge cases involving protected
activity, the respective burdens rest on the employee to show
that he was terminated because he engaged in a protected
activity, and, if this burden of persuasion is carried, the
burden is passed to the employer to show by a preponderance
of the evidence that he would have reached the same decision
even if he had not been motivated by a desire to punish the
employee for engaging in the protected activity. NLRB v.
Transportation Management Corp. , 462 U.S. 393, 103 S. Ct. 103
S. Ct. 2469 (1983); Mt. Healthy School District v. Doyle , 429
U.S. 274, 97 S. Ct. 568 (1977) The nexus between the protected
activity and the discharge may be shown by evidence of
circumstances that justify a retaliatory motive. Love v.
Re/Max of America, Inc. , 738 F.2d 383 (10th Cir. 1984).
Though the employer is free to discharge an employee for
valid business reasons an inquiry must be made to determine
whether the reasons are bona fide or pretextual. Marathon
Le Tourneau Co., Longview Division v. NLRB , 699 F.2d 248 (5th
[Page 11]
Cir. 1983). A finding that the firing was pretextual,
supported by persuasive evidence, is tantamount to a judgment
that the employer has not marshalled convincing evidence to
support its position. NLRB Geri-Care, Inc., 697 F.2d 56 (2nd
Cir. 1982).
KG&E represents that it maintained complete neutrality
in regard to Wells testing, and it seeks to exculpate itself
by saying that it acted solely on professional advice. This
is not plausible, in view of the whole scenario case. There
is a strong suspicion that there was more beneath the surface
based on the close business relationships of the actors. As
regards the personnel department of KG&E, there is persuasive
evidence that management regularly exercised tight, and
sometimes arbitrary control over hiring and firing at the plant.
The resolution of the Wells problem was a matter of top
priority at KG&E for years. It occupied top management.
That this hostility should suddenly turn to neutrality is
unbelievable.
The reinstatement of Wells ended a long period of
litigation. KG&E vigorously resisted the order to reemploy
Wells. In doing so it acted within its legal rights, but the
persistance of its opposition provides some understanding for
its posture when, at last, it had to act on the order of
reinstatement.
The alleged inability of KG&E to place Wells in his
former or substantially equivalent position as an inspector
is tainted by the same pretextual devices as are found in his
rehiring. It is incredible that suitable position, in
conformity with the order, could not be found in a department
of a thousand people. On the other hand, Wells placement in
the warehouse is perfectably understandable in view of what
KG&E intended to do.
The attention given to Wells, and, incidentally the
other employees in the department on his account, was an
irritation to him and the whole work force at the warehouse.
Moreover, there was an atmosphere of hostility among some of
his fellow workers. The feeling generated by management from
the top down was that Wells was in an interloper. The effect
of Wells presence at the plant from management's perspective
is aptly described in the letter of reprimand: "By his
[Page 12]
actions and intimidations, caused as substantial deterioration
in a previously harmonious work group". From the beginning,
Wells was seen as a trouble maker, who had no place at the
plant. Apart from being cauculated irritation to Wells, his
close confinement to the warehouse also prevented the possibility
of his seeing and complaining about safety violations. KG&E
created working conditions that fostered discord among its
regulars, and provided good reason for a less determined Wells
to resign.
There appears to have been a plan to discharge Wells by
the end of 1984. On New Year's Day, Wells' supervisor typed
up a list of grievances as a foundation for disciplining him.
These matters were not discussed with him, and he had not been
warned, or cautioned about his behavior beforehand. To this
point in time, there had been no complaints about Wells' work,
and indeed, the disciplinary action focused on personal behavior,
not work performance.
The charges were hastily gathered to produce reasons
for discharging Wells. Only two of the incidents charged are
supported by evidence: the knife throwing, and the disruptive
behavior in the security search area. Wells' testimony is
credited that the knife slid harmlessly along the floor after
he threw it down without danger to his fellow employee. If
Wells irritation at the security search area was disruptive,
it can be explained for his having to submit to a search of
his person on three occasions for no apparent reason. The
threat against a KG&E supervisor has no support in the evidence,
and it is denied by Wells. The profane and socially offensive
language is nowhere described or repeated in the evidence.
The only testimony that touched on profane language was that
of a witness whose sensitivities were offended by the word
"damn". The testimonial evidence was general, and none of
these incidents were associated with a time or place.
KO&E departed from practice when it tested Wells for
access in the plant after the final walk-down. Routinely,
the MMPI tests was given in the personnel office of the plant,
and were forwarded to the Wichita Clinic for evaluation.
In Wells's case, there were differences: he was sent to the
Wichita Clinic; his test was supervised at the Clinic by the
psychologist; and his appointment for the test was made by
the manager of administrative services in the nuclear department,
[Page 13]
who closely monitored the test results. This departure
from practice is seen as a method of assuring Wells inability
to qualify for unescorted access.
There is agreement at the first test taken by Wells at
the Clinic was flawed, because of his defensiveness, which
would tend to skew the evaluation. And, there is agreement
that a retest was necessary. Nonetheless, on October 30,
1984 a confidential memorandum was issued on Wichita Clinic
letterhead, over the name of the psychologist, stating that
access was not recommended based on test results. This rush
to judgment is all the more surprising in the light of
intentions to retest Wells, and to supplement the test
evaluation with a background investigation.
At the time of the request for additional background
information was made to KG&E, it already had an investigative
report on Wells entire life to August 1983. Clearly, there
was enough information in the earlier report to meet the
needs of the psychologist. (He relied on that very data in
making a second recommendation that Wells should be denied
access.) Yet another report was ordered. The second investigation
is viewed as a fishing expedition by KG&E for derogatory
information that might give more weight to the predetermined
discharge of Wells.
The investigation was completed on December 22, 1984.
That data together with information regarding the complaints
and disciplinary action taken at the plant prompted Schalon's
second recommendation against unescorted access. As with the
first, there were no reasons given, but it is clear from the
record, the psychologist relied on the disparaging data found
in the reports and the complaints, while he ignored the information
that tended to show good character. This recommendation
had far a reaching effect: it amounted to a blackball for
Wells in the nuclear industry. A question of such importance
cannot be treated so summarily, and stand without the appearance
of unfairness.
Doctor Sippola tested and interviewed Wells. His findings
and opinions were set out in detail. The least he found was
that Wells was no greater risk for the job he sought than the
population at large. His reasoned report persuasively showed
that wells should not have been denied unescorted access to
[Page 14]
the nuclear plant. He found Wells to be a person of intelligence,
honesty, and pleasing personality. He concluded significantly
(and perhaps the source of current difficulties), the he is a
person of high standards, who will persist in doing what he
thinks is right.
KG&E followed a management-by-objective philosophy.
The disposition of the Wells' problem was not left to chance.
Whether for affirmative action or other reasons, management
would alter test scores, manipulate records, and, indeed,
attempt to manage the evidence given in the original trial of
this case. Moreover, none of the evidence given by KG&E's
witnesses dispels the conclusion that Wells discharge (if he
was ever hired) was contrived pursuant to customary management
practices.
KG&F contends that it cannot be liable for Wells'
discharge. It reasons that since it acted on professional
advise, the decision to fire Wells is unassailable.
An analysis of the evidence, and the inferences arising
from the circumstances of Wells discharge leads to the
conclusion that Wells rehiring and firing by KG&E were pretextual,
and it is so found. The attitude of KG&E toward him was one
of hostility, carried over from his first discharge, fueled
by conflict and litigation. In reemploying Wells, KG&E was
responding to a court order from which there was no retreat.
And, even though KG&E (not Volt) was ordered to reinstate
Wells, it put him on the Volt time records. Though vehemently
denied, there is a design apparent in this record that shows
that KG&E picked Wells up only long enough to find reason to
fire him, or force his resignation. This is not a case of
dual motivation, but, instead, it is ease of single purpose:
to discharge Wells for engaging in his protected activity in
1983. Moreover, his discharge, if effected, would be a
guaranty against his protected activity in the future. The
motive of KG&E in firing Wells was retaliatory.
The discourse in this case has focused mainly on his
personality. The dissatisfaction with Wells at KG&E rests on
his judgment and persistance in bringing safety violations to
NRC. Unfortunately, the management of KG&E is also persistent
in punishing him for the performance of his duty.
[Page 15]
Wells produced a prima facie case of discrimination and
discharge by KG&E in violation of Section 5851. The evidence
of the violation is persuasive and convincing. The reasons
advanced by KG&E for Wells discharge and pretextual. But,
even if the "but for" rule is applied, KG&E has not produced
a plausible showing that Wells was fired for legitimate
business reasons.
There is no evidence in the record to show to what extent
KG&E complied with the order of the Secretary of Labor which
was issued in June of 1984 as regards back pay, purge of
records, posting of notices, and attorney fees and costs. it
has been found that KG&E did not rehire Wells, or if he was
rehired it was only for the purpose of finding cause to
force his resignation, or fire him.
The order of the Secretary requiring KG&E to restore
Wells to the same or a substantially equivalent position was
not followed, and KG&E response that it had no job for Wells
that was the same or substantially equivalent is unacceptable.
Inasmuch as there was no real compliance with the order
of the Secretary, that order should be reaffirmed and brought
current. Wells should be reinstated as of the date of his
termination on January 11, 1985. He is entitled to back pay
commencing on that date together with such increments in
wages as he would have received if he had continued to work.
On his reinstatement he should be placed in a job substantially
the same (by whatever name) as he had when he was terminated
in 1983. At that time, he was an electrical inspector in the
field and he should be returned to that work even if training
is required. A job in KG&E's warehouse is not suitable
employment considerating Wells work experience.
KG&E has developed a dossier on Wells that is biased and
derrogatory. Without correction, these data are damaging to
Wells, and prevent his employment in the nuclear industry.
This damage can never be completely undone, but it can be
ameliorated to some extent by purging Wells' personnel record
of derogatory information.
RECOMMENDED ORDER
It is recommended that the Secretary of Labor issue the
[Page 16]
following order:
A. That KG&E employ Wells to a position substantially
equivalent to the position he had when he was originally
terminated in 1983, that is, field electrical inspector, and
moreover to provide whatever training might be required to
fully qualify Wells for the position.
B. That KG&B pay Wells back wages, together with whatever
wages increases were granted to employees similarly situated as
electrical inspectors, from January 11, 1985 to the date of
his remployment pursuant to this order.
C. That KG&E expunge from Wells' personnel records
Schalon's opinions and conclusions that Wells is unfit for
unescorted access to the plant.
D. That KG&E grant unescorted access to Wells at the
nuclear plant.
E. That KG&E pay Wells attorney fees and costs incurred
in connection with this litigation after submission and
approval by the Secretary.
Dated: December 5, 1986
GEORGE A. FATH
Administrative Law Judge
GAF:pac
[ENDNOTES]
1 The claimant's exhibits are
prefixed "C", and the
respondents are designated "D".