The record was
held open for the submission of post-hearing briefs.
Findings of Fact
The findings below are based upon the testimony of the
witnesses who appeared at the hearing and the exhibits provided
by the parties.
1. Illinois Power Company owns the Clinton Power Station
in Clinton, Illinois.
2. Baldwin Associates is the general contractor responsible
for constructing the Clinton Power Station. The parties
have stipulated, and I find, that Baldwin Associates is
an employer covered by the Act.
3. Baldwin Associates consists of two branches: (1) Construction;
and (2) Quality and Technical Services.
4. The Quality and Technical Services branch is responsible
for inspections. It consists of five divisions: (1)
Technical Services; (2) Turnover; (3) Quality Engineering;
(4) Quality Assurance; and (5) Quality Control.
5. The Quality Control division consists of several "groups,"
including (1) Civil; (2) Electrical; and (3) Piping
[Page 3]
Mechanical. Each of these groups is staffed, in large
part, by field inspectors whose responsibility is to
verify that the construction work done at the power plant
meets the specifications established by Sargent & Lundy,
the plant's designer.
6. The Piping Mechanical group, in addition to field inspectors,
is staffed by members of the Traveler Preparation Review
Group ("TPRG"), whose responsibility is to review "travelers."
A "traveler" is the paperwork associated with discrete elements
of construction at the plant. A traveler gives building
instructions to craftsmen and inspection instructions to
inspectors. Some travelers deal with "hangers," which
provide housing and support to pipes and other physical
components of the power plant. Other travelers deal
with "instrumentations."
7. When an inspector discovers work at the plant that does
not meet specifications, he or she prepares a nonconformance
report ("NCR"). If nonconforming work is repetitious
or creates a significant problem, the Quality Engineering
department addresses the problem through a Corrective Action
Report ("CAR").
8. In April 1981, Cynthia Hale commenced employment with Baldwin
Associates.
9. From 1981 to June 1985, when she was terminated, Hale worked
as an inspector within several divisions and groups. She
was appraised as an "average" employee in November 1983
and again in October 1984. She received letters of
recognition and appreciation in May 1982, June 1982,
October 1984, March 1985,and May 1985.
10. Sometime in 1981, Hale contacted the Nuclear Regulatory
Commission ("NRC") with respect to a problem involving
the storage of materials.
11. Sometime in 1982, Hale contacted the Nuclear Regulatory
Commission with regard to her concerns involving Baldwin
Associate's practice of marking certain materials at
the Clinton Power Station with pink paint. This
method of identifying materials was inadequate, Hale
believed, because the requisitions identified material
[Page 4]
by numbers, not colors. Hale observed that material
marked by pink paint rather than a stock number could
not be traced. There is no indication in the record
that the NRC at this time acted upon Hale's concerns.
Also, there is no indication that Baldwin Associates
became aware of Hale's concerns prior to November
1984, when Hale reported the pink paint problem to
the SafeTeam (discussed infra ).
12. Sometime in 1982, the Nuclear Regulatory Commission
contacted Hale with regard to an incident in which a
foreman, angered by Hale's decision to report certain
nonconforming work, kicked Hale in the back. So that
the foreman would not be terminated, Hale reported the
incident to company personnel as "horseplay." Baldwin
Associates suspended the foreman for two weeks.
13. Sometime in 1984, Hale contacted the Nuclear Regulatory
Commission with regard to inadequacies in the drawings
supplied to inspectors by Sargent & Lundy, the Clinton
Power Station's designer.
14. On February 3, 1984, Hale provided the Nuclear Regulatory
Commission with information regarding the invalidation of
nonconformance reports at the Clinton Power Station. As
a result of this contact, the NRC conducted a "routine
safety inspection" in June 1984. This inspection led to
the discovery of a regulatory violation involving Baldwin
Associate's failure to "follow-up outstanding document
control transmittals as required by Baldwin Associates
(BA) procedure BAP 2.0, paragraphs 5.4.4 and 5.4.5."
On July 27, 1984, the NRC ordered Baldwin Associates
to take corrective action. On July 5, 1985, after
obtaining Hale's mailing address, the NRC thanked Hale
for her cooperation in this matter.
15. Hale made no other contacts with the Nuclear Regulatory
Commission prior to her termination. Subsequent
thereto, Hale contacted the NRC with regard to her
termination. There is no evidence of any action by
the NRC in response to Hale's action.
16. On November 16, 1984, Hale contacted the SafeTeam, an
independent organization created by Illinois Power
[Page 5]
Company to which employees of Baldwin Associates
could bring their safety concerns. As explained by
Richard W. Greer, Quality and Technical Services
Manager, the SafeTeam serves two purposes. "It is
for one, in order to get the employee's concern out
so that we can--we can resolve it," Greer testified.
"And the other [purpose], you know, [is] just literally
to give the employee a little more of a feeling that we
really do want to -- we really do want to know what the
problems are." Hale expressed the following concerns
to the SafeTeam: (1) that pink paint was an inadequate
means of marking materials; (2) that Baldwin Associates
utilized an inefficient procedure for inspecting welded
stud bolt holes; and (3) that Sargent & Lundy failed to
include necessary drawings in its travelers.
17. Greer described the SafeTeam as "an independent outlet ...
that is essentially confidential." Hale expected her
contact with the SafeTeam to be kept confidential. On
February 13, 1985, when the Director of the SafeTeam
contacted Hale in response to her concerns, he referred
to a "promise to do our best to preserve confidentiality."
Despite this promise, the SafeTeam alerted Greer to the
fact that Hale had raised concerns regarding the use of
pink paint as a means of marking materials. The SafeTeam
also reported to Greer that Hale Possibly was writing
incorrect nonconformance reports. At that time, Greer
was the Assistant Manager of Quality and Technical Services.
18. After learning of Hale's concerns regarding the use of
pink paint, on December 28, 1984, Greer called Hale into
his office. Greer had heard that Hale had threatened to
keep the plant from getting licensed because of the pink
paint problem. "So when I sat down to talk with Cindy,"
Greer testified, "I sort of went into the interview probably
with a negative attitude thinking that, boy, here somebody
that might be ready to, to create some problems here
that is going to stop licensing the plant. And I thought
that it was significant that in my interview with her,
she really didn't come across that way at all. She just
came across as a very, you know, concerned employee that
wanted this addressed ...... Greer further testified that
the meeting with Hale "alleviated my concern that somebody
[Page 6]
was running around out there saying, 'I will stop the
licensing of this plant.'" By letter dated March 8, 1985,
Greer thanked Hale for her efforts to assure that all
materials were properly controlled.
19. Greer initiated an investigation into the pink
paint problem. The findings were incorporated
into Corrective Action Report 222. During the
next several months, proposed corrective actions
were developed with respect to the problems
addressed by CAR 222. Larry W. Osborne, who was
Manager of Quality and Technical Services during
this period and who made the decision to fire Hale,
testified that he thought, at the time of Hale's
termination in June 1985, that the pink paint issue
was resolved, "...although I was aware that we hadn't
completed all of the corrective action at that time."
20. After investigating the charge that Hale was writing
nonconformance reports incorrectly, Greer reported to
Judy Genaw of the SafeTeam on January 14, 1985 that
the charge was unfounded.
21. On the same day (January 14, 1985), Hale was transferred
from the Electrical to the Piping Mechanical division.
Greer testified that the transfer was made because the
Piping Mechanical division was short of inspectors at
that time.
22. On February 11, 1985, Hale was recertified as a Level II
Piping Mechanical inspector. (She had worked in the
Piping Mechanical division as a certified inspector
during an earlier period.) The duties of a Level II
Piping Mechanical inspector included performing
verifications of instrumentations.
23. At the beginning of April 1985, Hale was assigned to
Fabrication Shop No. 1. Her primary responsibility
was to verify the traceability of items produced in
the shop. John Karl, the assistant quality control
supervisor assigned to the second shift, was Hale's
immediate superior.
[Page 7]
24. On April 1 or 2, 1985, Roger Warfield was demoted
from pipe fitter foreman in the fabrication shop
to pipe fitter. Thereafter, according to Hale's
testimony, Warfield resented the fact that Hale
checked his work. Warfield also resented the facts
that Hale did not personally stamp the fabricated
items she checked (a pipe fitter helped her) and
refused to answer the telephone in the shop office.
25. On April 5, 1985, Hale asked Warfield to place on
a table some plates that he was carrying so that
Hale could check the traceability markings. Warfield
placed or dropped the plates on the floor. "You want to
check them," Warfield stated, according to Hale's
testimony, "get down there and check them." Hale walked
away.
26. On April 6, 1985, Warfield complained to John Karl of
what he considered to be Hale's lack of cooperation in
the fabrication shop. Karl discussed the situation with
Hale.
27. On April 16, 1985, Hale and Warfield had a disagreement
relating to the traceability of certain nuts and bolts.
28. On April 17, 1985, Warfield told Karl that he was at
the point of losing his temper with Hale and feared
the consequences if he were to do so. Karl agreed
to reassign Hale.
29. Karl discussed the situation with Hale. He told Hale
that her reassignment was necessary. Hale inferred
from Karl's remarks that Warfield had threatened her
with physical harm. She told Karl that "this sounds
like a matter for the NRC."
30. Thereafter, Hale testified, she felt unsafe in the
fabrication shop due to Warfield's presence. On
April 22, Hale made a formal complaint against both
Warfield and Karl. She charged (1) that Warfield had
threatened her with physical violence; and (2) that
Karl also was guilty of wrongful intimidation by
acceding to Warfield's improper request for Hale's
transfer. Hale did not oppose a transfer; indeed,
[Page 8]
she requested a transfer to the Electrical division.
Karl did not effect the transfer, but instituted a
system of rotation so that Hale would work in the
fabrication shop only once every 7 working days.
31. On April 24, 1985, Larry Osborne, who was at that
time the Manager of Quality and Technical Services,
asked the law firm of Pope, Ballard, Shepard & Fowle
to investigate Hale's charges. John Lashbrook, an
attorney with that firm, conducted the investigation.
32. On April 29, 1985, Lashbrook submitted a report to
Osborne. The report contained the following conclusion:
"There was no wrongful intimidation, threat, or harassment
of Hale by Warfield. Warfield tried to defuse a
deteriorating, counterproductive personality conflict
between Hale and himself by seeking her transfer.
Nevertheless, Karl inadvertently handled the situation
in such a fashion that would raise serious questions
in the mind of a reasonable person in Hale's position
as to (1) whether she had been indirectly threatened
with physical harm, and (2) whether she was transferred
for trying to do her job as a quality control inspector
properly. However, Karl's conduct, although questionable
from a managerial and organizational point of view, should
not be considered deliberate wrongful intimidation."
33. On April 30, 1985, Osborne discussed the matter with Karl.
In a memorandum to "File," dated May 2, 1985, Osborne
wrote that he explained to Karl the need to minimize
the chances of an inspector's perceiving supervisory
actions as intimidation. According to the memorandum,
Karl informed Osborne that he had been having trouble
getting Hale to make traveler inspections since her
removal from the fabrication shop. "She maintains that
she needs more time to read procedures to properly
prepare herself for making the inspections," Karl
told Osborne, according to the memorandum. "This has
been an on going problem for the past week."
34. In a memorandum dated May 1, 1985, Osborne wrote that
"I believe that John Karl acted to remove Cindy Hale
from the fab shop in the interest of separating her
from a person with whom she has a personality conflict."
[Page 9]
35. On May 3, 1985, Osborne met with Hale. He told her
that she had not been intimidated and that he expected
her to perform the work assigned to her by her supervisor.
He also told her that she would not be transferred to the
Electrical division. In a memorandum, Osborne described
the meeting as follows: "During the interview, [Hale]
seemed more interested in trying to take down word for
word what I said rather than listening and talking about
it. She made several comments to the effect that
management cannot be trusted. She expected management to
stick together and support Karl, [and thinks that] we
(management) do not know what's going on." Osborne
concluded in the memorandum that Hale was "on a 'crusade,'
and is not ready to listen or consider anything I say
except for the opportunity to take something out of
context and use it to support her position."
36. On the same day (May 3, 1985), Osborne talked with Hale
outside a construction trailer. Hale told Osborne
that the situation had upset her so much that she had
avoided going to the fabrication shop two days earlier
by falsely claiming that she had left her Quality
Control stamps and identification badge at home and
therefore was unable to perform a particular inspection
in the fabrication shop. Osborne was already aware of
the incident, but had not been aware of Hale's lie.
37. Osborne subsequently asked Karl and Don Rogers, the nightshift
supervisor, to keep him informed with respect to
any problems that might arise involving Hale's not going
back to work. Osborne testified that both Karl and
Rogers later informed him that problems persisted.
38. Osborne asked Lashbrook to determine what Hale meant
when she had told him that there were things that
management did not know. On May 15, 1985, Lashbrook
reported that Hale probably had been referring to
Warfield's temper. Lashbrook also reported to Osborne
that Hale had told him "that she would go to the fab
shop as assigned and would not do anything to precipitate
trouble with Warfield."
39. On May 17, 1985, Karl gave Hale a "hot" (high priority)
instrumentation traveler. Hale told Karl that she did
[Page 10]
not feel comfortable with the traveler because she
lacked experience with instrumentation work. Karl
assigned another inspector to help Hale. The work
inspected by Hale required the writing of a nonconformance
report. Karl asked Hale to stay late to
finish the report. Hale refused. Another inspector
cautioned Hale that "you can't tell your boss that
you won't do something." Hale then agreed to stay
late and write the report with Karl's help. During
the evening, Hale told several inspectors that one
should not be forced to perform work that one cannot
handle comfortably and that she intended to notify
someone outside the organization.
40. Although Hale finished writing the report, Karl
reported the incident to Osborne as an act of
insubordination. According to inspector Michael
Cherry's testimony, Karl also asked Cherry, who
had witnessed the incident, to prepare a written
report "in case we had any further trouble with Cindy."
41. On May 22, 1985, Allan W. Lynch replaced Karl as
Hale's supervisor. Lynch testified as follows:
Almost immediately when I took over, I
observed that [Hale] requested additional
training far more than any of the other people.
And that there were several instances that I
would assign her work that she was certainly
certified to do; but she informed me that she
wasn't comfortable. Each and every time that
Ms. Hale asked me for additional OJT, I complied
with as soon as I could. I couldn't always
immediately put her with somebody; but she was
never requested to work something that she
indicated that she wasn't comfortable with.
* * *
Ms. Hale would initially accept the assignment.
As--later on into my tenure on second shift, the--there
was a frequency increase of work being returned. But
oddly enough, the request for additional training
[Page 11]
started to diminish. There were several instances
when Ms. Hale would approach me and say that, "I
don't feel comfortable about this traveler" and I
would ask Ms. Hale, "What is it that you don't feel
comfortable about?" And very rarely could she really
give me a concrete or pinpoint one item. It was basically
a generality.
And to me it started developing a pattern. There
[are] areas of that construction block that are extremely
hot, extremely uncomfortable to get to; and sometimes
extremely difficult to get to. And to me, there
started showing a pattern that the lengthy inspection,
although maybe not complex in nature that were physically
difficult or unpleasant to do, these seem to be the type
of work that was being returned.
During our discussions about what don't you feel
comfortable, very often it would--the discussion would
reach a point where in my opinion, it was going to
stop being discussions. It started turning into a
confrontation; and at such times, I would break the
conversation, return the work back to someone else,
and try and get Ms. Hale another work assignment.
42. Michael Cherry, an inspector who worked on Hale's
shift, testified that Hale "would take travelers and
not work them."
43. On May 30, 1985, Hale interrupted a training session
with several sarcastic remarks. Gloria Winn, who
conducted the class, reported the incident to LaMar
Palmer, Project Training Manager. Palmer sent a
written report of the incident to Dean Arnold, Manager
of Quality Control.
44. Palmer's report included the following excerpt: "Ms.
Cynthia Hale's behavior during the class caused a
considerable disruption to the point that tension
developed in the room which hindered the needed question
and answer portion of the class. Three people did
not pass the post-test. This is the highest number
of failures in a single class since we started fourteen
months ago.... Please inform Ms. Hale that continued
[Page 12]
behavior as described above will not be acceptable
and she will not be allowed either to continue in
class or to receive credit for classes should this
continue."
45. Osborne received a copy of the report. Osborne testified
that he told Lynch to tell Hale that "this kind of
activity couldn't be tolerated."
46. On June 5, 1985, Lynch met with Hale. He told Hale that
her classroom behavior was improper. He warned her that
a recurrence of such behavior could result in disciplinary
action.
47. On June 11, 1985, engineer Donald Kerwood gave
information to Hale concerning CAR 222. As discussed
supra , CAR 222 involved the pink paint problem. By
memorandum, Kerwood informed Lynch and J.R. Moskwa,
who was the Senior Piping Mechanical Supervisor and
Lynch's immediate superior, that he had given information
concerning CAR 222 to Hale. Kerwood's memorandum
contained the following excerpt: "I wish to note that
copies of CAR 222 ... are not generally in possession
of the inspectors and training has not been extended
in this area. Since the CAR 222 program is to be
reviewed by the NRC, I feel this should be of great
interest."
48. On June 12, 1985, Hale wrote a memorandum to Moskwa.
The memorandum concerned problems involving the
implementation of CAR 222.
49. As a result of Hale's memorandum, a meeting was held
on June 13, 1985. Hale, Lynch, Arnold, Phil Simpson
(Senior Quality Engineer), Kerwood and Edison Khoursader
(an engineer) attended the meeting. Hale expressed
her concerns regarding the implementation of CAR 222.
The others agreed that Hale's concerns were legitimate
and warranted corrective action.
50. Hale testified that if corrective action had not been
taken, she would have taken her concerns to the Nuclear
Regulatory Commission. At the meeting, however, Hale
made no threats to go to the NRC.
[Page 13]
51. After the meeting, Hale testified, she discussed the pink
paint problem on several occasions with engineers. She
testified that she kept a notebook on the problem. By the
time of the hearing, the notebook had been lost.
52. On June 19, 1985, Hale submitted a checklist to Lynch for
his review. Lynch noticed an error. When he brought the
error to Hale's attention, Lynch testified, she became
very defensive. Hale reinspected the work and changed
her report.
53. On Saturday, June 22, 1985, supervisor Lynch was
not present at the power plant. Inspector Michael
Cherry was the acting supervisor.
54. During that evening, Cherry had difficulty locating
a "hot" traveler. It was found on Hale's desk. Hale
had held the traveler for approximately 1 1/2 hours
without performing the work on the traveler. David
Birch, the inspector who found the traveler, told
Hale that it was "hot." Hale returned the traveler
to technical assistant Becky Rutledge by throwing
it on "the stack."
55. Cherry reassigned the traveler to Birch, who performed
the work. Cherry did not discuss the incident with Hale.
At the hearing, Cherry was asked why he did not confront
Hale. "Well, she has the--she was always going--you
know--threatening to take you to the NRC or something
like this, you know, and it was just customary that all
inspectors--we just, you know, the word was out just to
leave her alone," Cherry stated. "Not that anybody put
that word out, it was just between us [the inspectors]...."
56. On that same evening (June 22, 1985), Hale asked
inspector Michael Beacraft how to handle a particular
traveler. Beacraft explained to Hale that she would
have to check a particular hanger 40-50 feet above
the ground. One to two hours later, Hale asked Beacraft
to handle a particular traveler for her. Beacraft
agreed. He then discovered that it was the same
traveler that Hale had questioned him about earlier
in the evening. Beacraft performed the work.
[Page 14]
57. Beacraft then wrote a letter describing the incident.
There were no instructions from management that Hale
should be watched, Beacraft explained at the hearing;
he wrote the letter "[b]ecause I was upset at the time.
I had to go do another inspector's work. I felt that
my immediate supervisor should know about the problem
that existed, and perhaps resolve it, and that it doesn't
happen again."
58. On Monday, June 24, 1985, Beacraft gave the letter to
Lynch.
59. On the same day, Birch complained to Lynch about the
other incident of June 22 involving Hale. At Lynch's
request, Birch put his complaint in writing.
60. Lynch then asked Beacraft to reinspect the checklist
about which Hale had acted defensively on June 19, 1985.
Beacraft discovered a nonconforming condition that Hale had
not reported.
61. Lynch then arranged a meeting, which was held on June 25,
1985. The meeting was attended by Lynch, Osborne, Arnold,
Lashbrook, Don Rogers, and Rich Campbell from Illinois Power.
Lynch described the meeting as follows:
Well, I informed the Manager of Q and TS that I had
a situation--I had a problem with an employee. I explained
to Mr. Osborne what I had gone through ... as far as the
increased frequency of returning work and the decrease in
requesting for additional training; and that this had
reached a point that it was starting to be a source of
dissension and animosity among my other inspectors. it
was definitely having an influence on those people in
my opinion. And I also presented Mr. Osborne with the
information--the informal inspection that Mr. Beacraft
had done on that hanger, with that information; and that
something--something had to be resolved. That I felt
that the situation could not go on.
Mr. Osborne asked me, "Do you think that we should
transfer Ms. Hale to Electrical?" And it certainly was
no secret she desired that. And I said, "Absolutely
not." That to me that would be shirking my supervisory
[Page 15]
responsibilities. A problem exists, why send that
problem to some place else. Get the problem resolved
one way or another. That is not fair to the new
department; and in a sense, it is really not fair to
the employee in question also.
I also stated to Mr. Osborne, I said, "I can't
come in here and say, 'Terminate an individual'; but
this is what I have. These are the problems I have.
We have to reach some type of solution."
62. Osborne asked Lynch to prepare a written evaluation
of Hale. He also directed a reinspection of the
hanger inspected by Hale on June 19.
63. Lynch asked Beacraft to reinspect the hanger inspected
by Hale on June 19. Beacraft discovered some nonconforming
conditions not reported by Hale.
64. Lynch prepared the report requested by Osborne. In
it, he stated that Hale was not comfortable with
certain assignments and would request on-the-job
training. "Ms. Hale's tendency to refuse work on
this basis has been increasing steadily," Lynch wrote,
"while her requests for OJT have not." Lynch mentioned
the training session incident of May 30, 1985. Hale's
work reflected "an increasing frequency of errors,"
Lynch wrote. "I attribute this to lack of attention to
detail. This lack of attention has resulted in
reinspections, and numerous corrections. I feel that
Ms. Hale has been given ample opportunity to assimilate
the training needed to properly perform her duties
and is unable or unwilling to do so." Lynch attached
Hale's daily activity sheets to the report. "These
sheets," wrote Lynch, "reflect a great deal of time
being spent on procedural reading and O.J.T. functions."
65. On Wednesday, June 26, 1985, Osborne received Lynch's
report together with memoranda describing the incidents
of June 22. "I decided that Hale had not gone back to
making the inspections as I instructed her to, and that
she was disrupting the other inspectors," osborne
testified, "and I decided to terminate her employment."
When asked why he did not wait until Hale's projected
[Page 16]
layoff date in September 1985, Osborne explained his
decision as follows: "Because that was a critical
phase of the project where we were trying to wrap
things up. Manpower was going down. People were
quitting, so on and so forth. Her activities out
there and lack of activities had started to disrupt
the rest of the organization, and I believed that it
was impacting the inspections that we were making as
the Piping Mechanical group, and for that reason, I
could not tolerate another three months of it."
66. Osborne testified that he informed Lynch of his decision
at about 4:30 p.m. He left instructions as to what next
was to be done.
67. On the same day (June 26, 1985), Hale made a sarcastic
remark at a training class regarding the fact that inspector
Dennis McCay's name had not appeared on the attendance
sheet for such classes for several months. Attendance
at classes was mandatory; for this reason, it was important
that inspectors sign the sheet. Hale remarked that McCay
would probably report the situation to the Nuclear Regulatory
Commission when he ultimately was laid off. Osborne
testified that he did not learn of this incident until
after Hale's termination.
68. On June 27, 1985, at the beginning of the shift, Lynch
told Hale to go to Arnold's office. Reading from a
termination slip, Arnold told Hale that she was being
terminated because she was "[u]nable to perform assigned
duties." Arnold and Lynch then escorted Hale to the
SafeTeam.
69. Osborne ordered a reinspection of Hale's post-May 1,
1985 work. On August 7, 1985, Arnold reported to
Osborne that the reinspection provided "reasonable
assurance ... that the overall quality of [Hale's]
work [had been] acceptable." On August 8, 1985,
Osborne informed W. Connell, Manager of Quality
Assurance, that he was "satisfied that the quality of
Hale's work was satisfactory." Osborne also reported,
however, that the reinspection demonstrated that Hale's
production had been inadequate.
[Page 17]
70. On August 13, 1985, CAR 222 was closed.
Discussion
I.
Section 210(a) of the Energy Reorganization Act 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.
42 U.S.C. § 5851(a); see 29 C.F.R. § 24.2.
In Dartey v. Zack Company of Chicago , 82-ERA-2 (1983),
the Secretary described the evidentiary burdens borne by each
party under Section 210. Applying Texas Department of Community
Affairs v. Burdine , 450 U.S. 248 (1981) (a discrimination case
arising under Title VII of the Civil Rights Act of 1964), the
Secretary stated that the employee bears the initial burden of
establishing a prima facie case of discrimination. The burden then
shifts to the employer to offer legitimate, nondiscriminatory reasons
for the adverse action taken against the employee. If the employer
[Page 18]
is able to offer such reasons, the employee must demonstrate that
the reasons are pretextual. If the trier of fact concludes that
both legitimate and prohibited reasons motivated the employer
to take adverse action against the employee, the burden shifts
again to the employer to demonstrate that the adverse action
would have been taken even in the absence of the employee's
protected conduct.
The Secretary in Dartey also described the elements of a
prima facie case. Under the Dartey test, an employee may
satisfy the initial burden of proof by demonstrating:
(1) "that he engaged in protected conduct";
(2) "that the employer was aware of that conduct";
(3) "that the employer took some adverse action against
him"; and
(4) that "protected activity was the likely reason for
the adverse action."
The first element as stated is not in complete accord with the
statute. It suggests that an employee, before gaining the
protection of the Act, must take positive action of some sort
("engage in protected conduct"). Admittedly, the Act describes
what may be termed "protected conduct": commencing a proceeding
under the Act or the Atomic Energy Act of 1954; testifying in
such proceedings; or participating in such proceedings. Contrary
to the implications of the Dartey test, however, an employee
need not engage in such conduct before gaining the Act's protection.
Under the plain language of the statute, an employee is protected
if he is "about to commence," "about to testify," or
"about to
assist or participate" in a proceeding before the Nuclear Regulatory
Commission. See Albert Francis v. Bogan, Inc. , 86-ERA-8 (March
21, 1986) (Recommended decision by Administrative Law Judge
Paul H. Teitler).
The elements of a prima facie case were described somewhat
differently by the Sixth Circuit Court of Appeals in DeFord v.
Secretary of Labor , 700 F.2d 281 (6th Cir. 1983). Under the
test enunciated in DeFord , an employee may satisfy the initial
burden of proof by demonstrating the following:
"(1) that the party charged with discrimination is an
employer subject to the Act;
[Page 19]
(2) that the complaining employee was discharged or
otherwise discriminated against with respect
to his compensation, terms, conditions, or privileges
of employment; and
(3) that the alleged discrimination arose because the
employee participated in an NRC proceeding under
either the Energy Reorganization Act of 1974 or
the Atomic Energy Act of 1954, as amended."
DeFord , 700 F.2d at 286. The third element of the Sixth Circuit's
test is similar to the Secretary's test in that it suggests
that an employee, before gaining the Act's protection, already
must have taken positive action of some sort. Combining the
Dartey and DeFord tests, and clarifying the reference to NRC
proceedings, I find that an employee may satisfy the initial
burden of establishing a prima facie case by demonstrating the
following:
(1) That the employer is subject to the Act.
(2) That the employer took adverse action against the
employee.
(3) That the likely reason for the adverse action was
the fact that the employee commenced, testified in,
or participated in an NRC proceeding; or was about
to commence, testify in, or participate in an NRC
proceeding.
An employee may satisfy the third element by presenting evidence
of a sequence or pattern of suspicious circumstances from which it
reasonably may be inferred that the adverse action taken against the
employee was unlawfully motivated. See Mackowiak v. University
Nuclear Systems, Inc. , 735 F.2d 1159, 1162 (9th Cir. 1984).
II.
The parties have stipulated that Baldwin Associates is an
employer subject to the Act. There is no question that Baldwin
Associates, through the Manager of its Quality and Technical
Services branch, took adverse action against Hale by discharging
her. The issue is whether Baldwin Associates' discharge of
Hale was unlawful.
[Page 20]
Hale met with representatives of the Nuclear Regulatory
Commission on three occasions during her employment with Baldwin
Associates. The first two contacts involved problems relating
to the storage of materials (1981) and the use of pink paint as
a means of marking materials (1982). There is no indication
that the NRC acted upon the concerns expressed by Hale during
these contacts. The last contact involved the alleged invalidation
of nonconformance reports. Hale brought this charge before
the NRC in February 1984; as a result of the charge, the NRC
discovered a regulatory violation by Baldwin Associates in
June 1984. A year elapsed before Hale's termination. The
timing of this sequence of events suggests that Hale's contacts
with the NRC were not factors in Baldwin Associates' decision
to discharge Hale. Indeed, there is no evidence that Baldwin
Associates, at the time of Hale's termination, was aware that
Hale had ever contacted the NRC. Although the SafeTeam notified
Baldwin Associates of Hale's concerns regarding the use of
pink paint, there is no evidence that Baldwin Associates was
aware that Hale had brought these concerns to the NRC before
approaching the SafeTeam. For these reasons, I find that a
connection between Hale's actual contacts with the NRC and her
subsequent termination may not be inferred.
The record suggests two other possibly unlawful reasons that
may have motivated Baldwin Associates to discharge Hale. These
reasons are (1) that Hale reported problems regarding the use
of pink paint to the SafeTeam; and (2) that Baldwin Associates
feared that Hale would report the pink paint problem to the Nuclear
Regulatory Commission. These reasons involve overlapping evidence.
Accordingly, I will discuss these reasons together.
The SafeTeam is not a government entity. Like Baldwin
Associates, it is affiliated with Illinois Power Company.
For this reason, safety complaints filed with the SafeTeam
may be considered internal complaints. In Brown & Root, Inc.
v. Donovan , 747 F.2d 1029 (5th Cir. 1984), the United States
Court of Appeals for the Fifth Circuit ruled that the filing
of internal safety complaints is not protected by the Act.
The Courts of Appeals for the Tenth, Ninth, and Second Circuits
have taken a contrary position. See Kansas Gas & Electric
Company v. Brock , 780 F.2d 1505 (10th Cir. 1985); Mackowiak v.
University Nuclear Systems, Inc. , 735 F.2d 1159 (9th Cir.
1984); Consolidated Edison Company of New York, Inc. v. Donovan ,
673 F.2d 61 (2d Cir. 1982). The Secretary agrees with these latter
[Page 21]
courts that the filing of an internal safety complaint is a
protected activity. See Kansas Gas & Electric Company , 780 F.2d
at 1511 (discussing the Secretary's position). The United
States Court of Appeals for the Seventh Circuit, in which this
case arose, has not addressed the issue.
The Fifth Circuit's construction of the Act in Brown &
Root takes no cognizance of the fact that the filing of an
internal complaint often precedes the filing of a complaint
with the Nuclear Regulatory Commission. The instant case is
illustrative. Richard W. Greer, the Manager of Quality and
Technical Services, testified that he preferred inspectors'
reporting problems to supervisors or the SafeTeam before reporting
the problems to the NRC. Hale testified that at s me time in
the future, if necessary, she would have reported the pink paint
problem to the NRC rather than the SafeTeam because she already
had reported the problem to the latter organization. Under the
Brown & Root court's narrow interpretation of the Act, employers
could with impunity identify and discharge safety-minded inspectors
before they had an opportunity to file complaints with the NRC
by establishing an internal procedure for filing safety complaints.
This result would be contrary to the plain language of the statute,
which protects employees who are "about " to commence, testify in,
or participate in an NRC proceeding. For this reason, in accordance
with the Secretary's position, I find that the Act protects the
filing of internal complaints. The legislative history of the Act,
as explained by the Tenth Circuit Court of Appeals in Kansas Gas
& Electric Company , supports this conclusion. See Kansas Gas &
Electric Company , 780 F.2d at 1510-13.
The record contains some circumstantial evidence supportive
of an inference that Baldwin Associates unlawfully discharged
Hale because: (1) Hale reported the pink paint problem to the
SafeTeam; or (2) Baldwin Associates feared that Hale was about
to report the pink paint problem to the Nuclear Regulatory
Commission. The circumstances supporting this inference are
as follows:
1. From 1981 to October 1984, when Hale was appraised
as "average," Baldwin Associates viewed Hale's work as
satisfactory.
2. In November 1984, Hale reported the pink paint problem
to the SafeTeam.
[Page 22]
3. Despite a promise of confidentiality, the SafeTeam
conveyed Hale's concerns and identity to Richard Greer, Assistant
Manager of Quality and Technical Services.
4. Greer admittedly feared that Hale might interfere with
the licensing of the power plant. One of the apparent purposes
of Greer's meeting with Hale, in December 1984, was to ascertain
Hale's intentions.
5. The incident of alleged intimidation by Hale's supervisor
John Karl and craftsman Roger Warfield resulted in an investigation.
During this investigation, on May 3, 1985, Larry Osborne, Manager
of Quality and Technical Services, met with Hale. Osborne noted
that Hale was hostile to management and seemed to be on a "crusade."
6. After this meeting, Osborne asked Karl and Don Rogers,
the night-shift supervisor, to watch Hale and to alert him to
problems involving Hale.
7. Shortly thereafter, on May 17, 1985, the incident involving
Hale's temporary refusal to complete a "hot" traveler occurred.
Karl reported the incident as an act of insubordination and asked
inspector Michael Cherry, who witnessed the incident, to prepare a
written report.
8. On June 11, 1985, Hale requested information from
engineer Donald Kerwood regarding CAR 222. Noting that
CAR 222 would involve review by the Nuclear Regulatory
Commission, Kerwood immediately reported Hale's request
to J.R. Moskwa, the Senior Piping Mechanical Supervisor.
9. On June 12, 1985, Hale wrote a memorandum to Moskwa
regarding the pink paint problem. As a result of this
memorandum, on June 13, 1985, several supervisory personnel
met with Hale.
10. On June 22, 1985, when inspector David Birch complained
of Hale's improper handling of a "hot" traveler to Allan W. Lynch,
who had replaced Karl as Hale's supervisor, Lynch asked Birch
to put his complaint in writing.
11. On June 25, 1985, Lynch arranged a meeting with Osborne
and several other management personnel to discuss Hale.
[Page 23]
12. Two days later, without having issued a written warning,
Baldwin Associates discharged Hale.
The circumstances and sequence of events listed above do
not establish that Hale's termination was unlawful. Nonetheless,
they are suspicious. They suggest the following scenario:
Until Hale reported the pink paint problem to the SafeTeam,
Baldwin Associates viewed her as an "average" inspector.
Afterwards, according to Greer's own testimony, Hale was viewed
as a threat to the licensing of the plant. Several months
later, when Osborne discovered what he perceived as Hale's
crusading nature and hostility to management, the threat posed
by Hale was confirmed. Management then took the unusual steps
of watching Hale and gathering written reports. After Hale
involved herself once again in the pink paint problem, she was
fired at the first opportunity. From the circumstances and
sequence of events numbered above, I find this scenario reasonably
inferrable. The conclusion follows that Baldwin Associates
discharged Hale because it feared that the inspector was "about"
to report the pink paint problem to the Nuclear Regulatory
Commission. Without finding that the evidence mandates this
conclusion, I find that Complainant has presented sufficient
circumstantial evidence to satisfy her burden of establishing a
prima facie case of unlawful discrimination.
III.
Under the test enunciated by the Secretary in Dartey v.
Zack Company of Chicago , 82-ERA-2 (1983), the employee bears
the burden of establishing a prima facie case of unlawful
discrimination. The burden then shifts to the employer to
offer legitimate, nondiscriminatory reasons for the adverse
action taken against the employee. At the time of Hale's
termination, Baldwin Associates alleged that the decision
to terminate Hale was based upon the fact that she was "[u]nable
to perform assigned duties." Larry Osborne, who made the decision
to discharge Hale, elaborated upon this reason at the hearing:
I meant that [Hale] was not performing the
inspections assigned. She was getting help
from other inspectors or from her supervisor
to perform them, and ... she continued to spend
an awful lot of time--an excessive amount of
time reviewing procedures that she had already
[Page 24]
qualified on and reviewed, and the incident
in the training class where she indicated that
she did not want to be in the training and she
was only there because we told her to go, led
up to my conclusion that she couldn't do
the work and she was unwilling or unable to
be trained to do it.
As an additional reason for his decision, Osborne stated
that Hale was disrupting the work of the other inspectors.
Adverse action for the reasons cited by Osborne is not
prohibited by the Act. If these were the only reasons for
Hale's discharge, no violation of the Act occurred. The
following circumstances support the inference that the reasons
offered by Osborne were, in fact, the actual reasons for Hale's
termination:
1. There is no evidence that Hale was subjected to
particular scrutiny prior to the April 1985
incident of alleged intimidation by John Karl and
Roger Warfield.
2. By filing the charge of intimidation, Hale herself
prompted the ensuing investigation by management
personnel.
3. After investigating the incident, John Lashbrook
reported to Osborne that Hale's reaction to the
incident was reasonable. He also reported,
however, that Hale did not face an actual threat
of violence by Warfield and that Karl's handling of
the incident, although clumsy, did not represent
deliberate intimidation. Lashbrook's report is
rational, and Osborne's adoption of Lashbrook's
conclusions was reasonable.
4. During the investigation, Karl reported to Osborne that
Hale had developed a tendency to avoid some work by
claiming to need additional training. Hale herself
admitted to Osborne that she had avoided a particular
job in the fabrication shop by lying to Karl. Under
the circumstances, Hale's reluctance to work in the
fabrication shop was not unreasonable; however, in
[Page 25]
light of Lashbrook's report that Hale did not face
an actual threat of violence in the fabrication
shop, Osborne's directive to Hale that she was expected
to perform assigned work also was not unreasonable.
5. In light of Karl's report regarding Hale's tendency to
avoid some work and Osborne's personal confirmation of
the accuracy of that report, Osborne did not act
unreasonably by asking Karl and Rogers to watch Hale.
6. The testimony of Lynch and Cherry confirm the fact that
Hale had a tendency to avoid some work.
7. In May 1985, Karl reported to Osborne that Hale temporarily
had refused to complete a "hot" traveler. Karl characterized
Hale's conduct as insubordination. Osborne reasonably could
view this incident as an indication that Hale had not
heeded his warning that assigned work must be performed.
8. Later that month, instructor Gloria Winn reported to
LaMar Palmer, the Project Training Manager, that Hale
had disrupted a training session. Palmer sent a written
complaint to Dean Arnold, Manager of Quality Control.
The complaint suggested that Hale's behavior had caused
three inspectors to fail the post-class test. Osborne,
who received a copy of the complaint, told Lynch to tell
Hale that "this kind of activity couldn't be tolerated."
In light of the seriousness of the complaint, Osborne
reasonably could suspect or conclude that Hale was a
disruptive force in the workplace.
9. On June 22, 1985, after holding a particular traveler
for 1-2 hours, Hale gave the traveler to inspector
Michael Beacraft. Earlier that evening, Beacraft had
explained to Hale how to handle the traveler. When
passing the traveler to Beacraft, Hale did not mention
that it was the same traveler he had explained to
her. Under these circumstances, it was not unreasonable
for Beacraft to become upset for having to perform another
inspector's work. Furthermore, it was not unreasonable
or unnatural for Beacraft, on June 24, 1985, to report
the incident to Lynch, Hale's supervisor.
10. Also on June 22, 1985, Hale returned a "hot" traveler to
[Page 26]
the acting supervisor after holding it for 1 1/2 hours
without action. The acting supervisor reassigned the
traveler to inspector David Birch, who performed the
work. Under these circumstances, it was not unreasonable
for Birch to become upset and to report the incident,
on June 24, 1985, to Lynch.
11. On June 24, 1985, Lynch was confronted with reports of
two separate incidents involving Hale's avoidance of
work. These reports confirmed Lynch's own observations.
Under these circumstances, in light of Osborne's
instructions to report incidents involving Hale, it
was not unreasonable for Lynch to arrange a meeting
with Osborne and other management personnel for the
purpose of discussing Hale.
12. On June 25, 1985, Lynch reported the incidents of
June 22 to Osborne and other management personnel.
Lynch described Hale as a source of dissension and
animosity. In light of the ill feelings expressed
by Beacraft and Birch, this description was probably
accurate. In light of Lynch's report and Hale's past
history, Osborne did not act unreasonably by requesting
a formal evaluation of Hale.
13. Lynch reported to Osborne that Hale had developed a
pattern of avoiding work by sometimes asking for
on-the-job training and at other times just denying
the ability to do the job. The incidents of June 22
confirmed this conclusion. Under these circumstances,
it was not unreasonable for Osborne to conclude that
"Hale had not gone back to making the inspections as
I instructed her to, and that she was disrupting the
other inspectors."
As a result of the situation involving Karl and Warfield,
Hale came under scrutiny by management. In subsequent weeks,
Osborne received credible reports that Hale had developed a
tendency to avoid work and that she had become a disruptive
force. Oral warnings (following the Warfield incident and the
trainingclass incident) did not effect an improvement in
Hale's conduct. Accordingly, Osborne decided to terminate
Hale for being unable or unwilling to accept work assignments
and for disrupting the work of other inspectors. On the bases
[Page 27]
of the circumstances and sequence of events listed above, I
find Baldwin Associates' asserted reasons for discharging Hale
supported by substantial evidence and genuine.
IV.
Assuming that an employer's asserted reasons for taking
adverse action against an employee are not discriminatory in
a manner prohibited by the Act, the employee bears the burden
of demonstrating that the asserted reasons are pretextual.
Dartey v. Zack Company of Chicago , 82-ERA-2 (1983). Complainant
has failed to meet this burden. Indeed, as discussed supra ,
the evidence indicates that Baldwin Associates' asserted (and
lawful) reasons for discharging Hale were genuine.
Despite the foregoing, a violation of the Act may be found
if the trier of fact concludes that both lawful and unlawful
reasons motivated an employer's decision to take adverse action
against an employee. In such "dual motive" cases, the burden
shifts to the employer to establish that the adverse action would
have been taken even in the absence of the unlawful reasons. Id .
The record contains some circumstantial evidence suggesting a
connection between Hale's termination and her involvement in the
pink paint problem. As discussed supra , this evidence is sufficient
to establish a prima facie case of unlawful discrimination. For
the reasons discussed below, however, I find that Hale's involvement
in the pink paint problem played no part in Baldwin Associates'
decision to terminate her.
1. The Warfield incident prompted the scrutiny of Hale's
behavior that finally resulted in the inspector's termination.
The pink paint problem played no part in the Warfield incident.
2. Larry Osborne, who made the decision to terminate Hale,
testified that Hale's involvement in the pink paint problem played
no part in his decision. Osborne was a credible witness who no
longer works for Baldwin Associates.
3. The evidence indicates that management viewed the pink
paint problem seriously and responded positively to Hale's expressed
concerns. There is no evidence, moreover, that the problem
was not under control at the time of Hale's termination or
that management, at the time of Hale's termination, feared the
[Page 28]
involvement of the Nuclear Regulatory Commission.
4. At the time of his decision to terminate Hale, Osborne
faced the following facts: (1) by her own admission, Hale had
avoided a particular job shortly after the Warfield incident;
(2) according to Karl, Hale had developed a tendency to avoid
some work; (3) according to Karl, Hale temporarily had refused
to complete a "hot" traveler, (4) according to instructor Gloria
Winn, Hale had disrupted a training session; (5) according to
two angry inspectors, Birch and Beacraft, Hale had avoided particular
jobs and thereby forced them to complete her work; and (6) prior
to the incidents involving Birch and Beacraft, Hale had received
two oral warnings. Each charge against Hale tended to confirm the
prior charge. The charges were of sufficient seriousness
to justify Osborne's decision to terminate Hale. Arguably,
Osborne's decision not only was justified but was compelled
by the circumstances. For this reason, I find that there
is no reason to suspect a "dual motive" behind Osborne's
decision.
5. Winn, Birch and Beacraft were not management personnel. The
charges
they brought against Hale were not solicited by management personnel, although Lynch
asked Birch to put his charge in writing. The charges against Hale cannot be viewed as mere
concoctions by management personnel.
These considerations lead me to the conclusion that Hale's involvement
in the pink paint problem played no part in Baldwin Associates' decision to terminate Hale. I
accept Osborne's explanation that he made the decision to discharge Hale because (1) she was
unable or unwilling to accept assignments; and (2) she had become a disruptive force in the
workplace. The Act does not prohibit adverse action against an employee for these reasons.
Accordingly, I recommend that the Secretary adopt the following Order.
RECOMMENDED ORDER
IT IS ORDERED THAT the complaint in this matter be, and it hereby is,
DISMISSED.
LAWRENCE E.
GRAY
Administrative
Law Judge
Dated: OCT 20 1986
Washington, D.C.
[ENDNOTES]
1 The parties in this proceeding have
agreed to waive the
time requirements of 42 U.S.C. § 5851(b)(2)(A) and 29 C.F.R.
§ 24.6(b)(1) as to both the administrative law judge and the
Secretary of Labor.