RONALD J. GOLDSTEIN
Complainant
EBASCO CONSTRUCTORS, INC.
Respondent
Billie P. Garde, Esq.
Richard Condit, Esq.
Government Accountability Project
1555 Connecticut Ave., N.W., #200
Washington, D.C. 20036
For the Complainant
Samuel E. Hooper, Esq.
Carol Daniel, Esq.
Neel, Hooper & Kalmans, P.C.
777 Post Oak Blvd., #332
Houston, TX 77056
For the Respondent
BEFORE: ROBERT J. BRISSENDEN
Administrative Law Judge
Stipulations
The parties have stipulated that at all times
material hereto, Respondent Ebasco Constructors,
Inc. ("EBASCO") was an "employer" and
Complainant Ronald J. Goldstein ("Goldstein") was an
"employee" as such terms are used under the
Act. (42 U.S.C. § 5851(a).)
Issues
1. Whether Goldstein made a timely request for
a formal hearing before an Administrative Law
Judge.
2. Whether Goldstein established a prima facie
case of discrimination in violation of the Act.
3. Whether EBASCO established any defenses
to Complainant's case in chief.
Statement of the Case
The following is a summary of the voluminous
exhibits and lengthy testimony in this matter. I
have carefully considered all exhibits, including
those not mentioned below, and all testimony.
Goldstein's Request for Formal Hearing:
On June 16, 1986, Daniel K. Brown, a
Department of Labor ("DOL") Area Director, issued a
letter informing Goldstein that his investigation
had revealed no violation of the Act by EBASCO.
(C-13) The letter also informed Goldstein that he
[Page 3]
could appeal Mr. Brown's findings by filing a
request for formal hearing by telegram to the Chief
Administrative Law Judge within five days of
receipt of the letter. At the hearing in this matter,
Goldstein testified that he received Mr. Brown's
letter on June 21, 1986. On June 24, he sent a
telegram requesting a formal hearing to the Chief
Administrative Law Judge. (C-12) Goldstein testified
that his only knowledge of the regulations
regarding requests for formal hearings was the
explanation of those regulations contained in Mr.
Brown's letter, and he did all that he could to
comply with them.
Prima Facie Case and Defense:
Testimony of Goldstein:
In February 1984 EBASCO hired Goldstein as a
Craft Supervisor in the Instrumentation and
Controls Department ("I&C") at its South Texas
Project. He initially supervised about fifty
employees, with the assistance of a general foreman and
three regular foremen, in the Reactor Containment
("RCB") and Fuel Handling ("FHB") Buildings in
Unit 1 of the Project. Until May 1985 his own
supervisor was a Mr. Forrest Smith.
Goldstein testified that he had friendly and
cooperative relations with Smith. He thought Smith's
written evaluation of him (R-3) was fair, although
he did protest certain remarks. Melvin R.
Strawbridge, one of Smith's supervisors, worked out an
arrangement whereby Goldstein withdrew his
protest and Smith changed certain parts of the
evaluation. Neither party called Smith to testify at the
hearing, and I accept Goldstein's view of this
incident.
In May 1985 Mr. Rick Greenwell took over as
Goldstein's supervisor. According to Goldstein,
personality conflicts arose almost immediately.
Greenwell did not react well to suggestions, and
he took offense to the questioning of his
decisions. Goldstein objected to Greenwell's
evaluation of his work in June 1985, and he attached a
[Page 4]
written response to the evaluation. (R-4)
Goldstein's testimony did not flow easily, and he
had a tendency to ramble about petty disputes
between himself and Greenwell. However, he
identified the following main "quality control" or safety
concerns, which arose during the course of his
work from June to August 1985.
1. Greenwell did not follow a requirement that
all EBASCO field personnel were to submit
"control" documents at the end of each work shift.
2. Due to lack of desk space in Goldstein's
work area, it was difficult to keep records and
write reports.
3. The interchange between Goldstein's "A"
shift and a second "B" shift that had been set up
in his work area did not work well because
Goldstein felt EBASCO management wanted to
replace him with Kenneth Parent, the supervisor of
the "B" shift.
4. Due in part to a shortage of trained safety
related personnel on the "B" shift, the "B" shift
skipped a "hold point" on a phase of work related
to a component cooling thermo well installation.
According to Goldstein, the "B" shift altered a
pipe without following the correct safety inspection
procedure. When Goldstein brought this matter to
the attention of management, he was met with
hostility, obstruction, and eventual "cover-up" of
the incident through falsified documents.
5. Goldstein believed the "B" shift damaged a
piece of equipment called a "flux mapping skid"
by failing to follow the proper construction
sequence. Then a long delay occurred which he
blamed on management. The employees in the
"B" shift claimed they could not find required
process sheets, but Goldstein claimed the sheets
were readily available. (C-4)
In summary, Goldstein claimed that the above
mistakes in construction work, plus the falsification
of documents, other employees' reluctance to
issue "Non-Conformance Reports" ("NCRs") on
safety problems, and a general undue urgency to
produce quantity rather than quality in work at
EBASCO, were "serious" and possibly "critical"
[Page 5]
with regard to safety issues. I find Goldstein was
consistent in his views on quality concerns, as
shown by various documents he submitted to
EBASCO's Quality Assurance Department and
SAFETEAM, an independent safety organization.
Goldstein stated that his poor work evaluations
and eventual layoff were a consequence of his
voicing quality concerns. However, he also
admitted to pushing his own personal concerns with
reference to his evaluations. He testified that he
filed an internal religious discrimination complaint
in August 1985 because he thought "discriminatory"
acts by EBASCO management might have
been motivated by religious bias, but at the time
of hearing he appeared no longer to believe that
might have been so. Testimony by other
witnesses showed that the religious discrimination
complaint had little or no basis in fact.
Testimony of Alfred Kutowy:
Kutowy, a witness for EBASCO, supported the
point of view that Goldstein's quality concerns, set
out above, were not serious quality problems. In
fact, the impression given by this witness was that
Goldstein did not care about quality; he
complained about an enormous variety of actions by
management, including those set out above,
primarily in order to advance his own career. His
opinion was that any quality concerns brought up
by Goldstein were trivia.
Kutowy, an engineer employed by EBASCO,
worked with Goldstein during 1984 and 1985. He
testified that Goldstein did good work initially, but
his performance deteriorated after Greenwell's
evaluation in June 1985. Kutowy also testified that
Parent, the supervisor of the "B" shift, was well
qualified for his job and a cooperative type of
person. The difficulty with the interchange
between the "A" and "B" shifts was caused by
Goldstein's opposition to the setting up of the "B"
shift, not by any action of Parent's.
Kutowy believed the incident involving the flux
mapping skid was a "miniscule" matter with
[Page 6]
regard to safety. However, he corroborated
Goldstein's testimony that the "B" shift bypassed hold
points and installed thermo wells without the
required safety inspections. On cross-examination,
Kutowy admitted that Goldstein acted properly in
raising concerns about these two incidents and
that Goldstein's concerns were honest and
sincere. He also admitted that the violation of hold
points on a nuclear project is not a minor matter.
Testimony of Kirk Weyant:
Like Kutowy, Weyant was an EBASCO engineer
who worked with Goldstein. A witness for
EBASCO, Weyant testified that Goldstein opposed
the institution of the "B" shift, and that Goldstein
complained about a variety of subjects during
June and July 1985. Weyant considered most of
Goldstein's complaints inconsequential, but he did
recall the incidents involving the thermo wells and
the flux mapping skid. Weyant also corroborated
that Goldstein was upset by Smith's and
Greenwell's evaluations of his work.
Testimony of Melvin Strawbridge:
Strawbridge, called by EBASCO, stated that
after December 1984 he was the Assistant Unit
Manager for Unit 1 at EBASCO's South Texas
Project. As a supervisor over Smith and then
Greenwell, he reviewed personnel evaluations
prepared by those two men. Strawbridge testified
that he resolved the dispute over Smith's January
1985 evaluation of Goldstein; Goldstein withdrew
his response to the evaluation, and Smith upgraded
it, giving Goldstein a better than average rating
with laudatory comments. (R-3)
Strawbridge also reviewed Greenwell's June
1985 evaluation of Goldstein. As with Smith's
evaluation, Goldstein submitted a rebuttal to the
evaluation, and Strawbridge believed this action
suggested a pattern of response to any supervisor's
evaluation. Unlike his action on Smith's evaluation,
Strawbridge did not intervene in the dispute
[Page 7]
between Greenwell and Goldstein, but simply
attached a letter of support to Greenwell's evaluation.
He testified that his decision not seriously to
consider or investigate Goldstein's comments was
influenced by an incident in February 1985, when
Goldstein was asked to research the answer to a
question from the parent company on the South
Texas Project, Houston Light and Power
Company. Strawbridge objected to the sarcastic tone of
Goldstein's response to the research question
and began to consider Goldstein a chronic
troublemaker and less than a "team" player.
Testimony of Rick Greenwell:
Greenwell testified that when he came to the
South Texas Project in November 1984, Smith
was his supervisor. However, after about three
and one-half months he took over Smith's position
and became Goldstein's supervisor. Before his
work at the South Texas Project, Greenwell had
worked at EBASCO's "Waterford" project, where
he had supervised Parent for about ten months.
He was instrumental in getting Parent his job as
supervisor of the "B" shift in April 1985.
Greenwell appeared confused about the
chronology of various events involving Goldstein.
However, he testified that in July 1985, Goldstein
complained to him about the thermo well problem and
the quality of Parent's work. On June 10, 1985,
Goldstein complained about the security of an
area at the bottom of a reactor. On June 11, a fire
occurred in that area, and on June 17 Greenwell
issued a written warning to Goldstein about poor
housekeeping. (C-54) Goldstein prepared a
written response (C-54) to the warning, pointing out
that employees other than those in his "A" shift
could have left debris in the area. Under questioning
as an adverse witness by Goldstein's counsel,
Greenwell did not adequately explain why he
singled out Goldstein for a serious reprimand (C-54)
of a type he had never before issued. He also
admitted that he had not brought up the subject of
"poor housekeeping" by Goldstein's shift prior to
the fire.
[Page 8]
Greenwell acknowledged that the matter of the
flux mapping skid in August 1985 was a mistake
by the "B" shift about which Goldstein had been
concerned. Around the same time, Goldstein informed
him that the matter of the thermo wells
had not yet been resolved. On August 8, 1985,
Greenwell wrote a memo to Strawbridge recommending
that Goldstein be transferred to the "B"
shift, and he told Goldstein that the transfer would
go through on August 12. In the memo, Greenwell
stated that he "was spending so much time dealing
with [Goldstein] that the rest of the department
was beginning to suffer........" (C-57, C-58)
Greenwell's testimony and other evidence on
the chronology of events in August 1985 is not
clear, and so there is no definite way to determine
whether any of Goldstein's complaints brought
about his transfer. Nevertheless, the inference is
there that Goldstein was not deterred by threats
of transfers nor by admonitory memos from
continuing to express hts concerns. (C-55, C-56,
C-57, C-58)
The gist of Greenwell's testimony was that
Goldstein was an annoying source of unwelcome,
albeit useful quality related concerns, as well as a
host of other problems dealing with relations
between the "A" and "B" shifts. Greenwell could
not explain why he required Goldstein to prepare
outlines of work for Parent's "B" shift but did not
require other shift supervisors to prepare such
outlines. (Tr. 1116, 1117) In addition, it apparently
never occurred to Greenwell to reprimand Parent
for the thermo well and flux mapping skid
incidents, both of which were errors by Parent's "B"
shift.
Greenwell rated Goldstein as the worst qualified
of a group of supervisors he evaluated to
determine which employees would be laid off in April
1986. (R-38, R-39) At the hearing, Greenwell
stood by his ratings as being devoid of bias.
However, most of the guidelines for the evaluations
was entirely subjective. (R-29, R-38) In addition,
during much of the time immediately preceding
the April 1986 layoffs, Greenwell was not
[Page 9]
Goldstein's direct supervisor and had no direct contact
with him. (See J-1-J-33)
My impression of Greenwell was that he
appeared uncertain of his status, defensive of his
past actions, and inadequate in his explanations
of his motives for actions taken against Goldstein.
Testimony of James Blackwood:
Blackwood was the Unit Construction Manager
for Unit 1 at the South Texas Project and supervised
about 2500 employees. He testified that in
June 1985 Goldstein complained to him about not
getting enough support for his crew and about
Greenwell's lack of ability as a supervisor. At a
meeting in January 1986, Goldstein stated that he
was going to sue EBASCO. Blackwood also
recalled that both the Quality Assurance Department
and SAFETEAM interviewed him. However,
he appeared to have memory problems on many
other material matters.
Testimony of Robert Zaist:
Zaist was the senior manager of the South
Texas Project during times material to this case.
On August 10 and 12, 1985, Goldstein discussed
his concerns with Zaist. (R-41) Goldstein said he
came to Zaist because he could not talk with
Strawbridge and Blackwood. He complained about
various matters, including quality concerns,
religious discrimination, and Greenwell's evaluation of
June 1985.
After meetings and conversations with personnel
managers (R-4, R-26, R-27, R-28, C-52),
Zaist concluded that there had been no religious
discrimination, and Goldstein was in reality only
concerned about his June 1985 evaluation. Zaist
appeared to take the position that Goldstein was
simply a disgruntled employee who was not
performing well. He concluded that the evaluation
was fair and advised Goldstein to improve his
performance. The possibility of the evaluation itself
being used as a form of discrimination apparently
[Page 10]
never entered Zaist's mind.
In September 1985 Zaist decided to remove
Goldstein from a list of potential candidates for a
December layoff because he knew Quality
Assurance was in the process of investigating
Goldstein's quality concerns. Zaist testified that he
disagreed with Quality Assurance's later conclusion
(C-40) that Goldstein had been discriminated
against for bringing up quality concerns. He
believed Goldstein was transferred to the "B" shift
in August 1985 because of performance problems
and a personality conflict between Greenwell and
Goldstein, and he concluded that none of
EBASCO's actions, including Goldstein's layoff in
April 1986, were discriminatory. (R-45; Tr. 1270)
Testimony of William Urell:
Urell was the personnel manager for the South
Texas Project. In many respects, his testimony
corroborated details already discussed with reference
to other witnesses. He also testified that an
EBASCO attorney advised Zaist that Goldstein
should be taken off the layoff list in September
1985 because of the ongoing Quality Assurance
and SAFETEAM investigations. The implication
was that a "safe" time to "move" Goldstein would
be after all quality reports were completed
because otherwise Goldstein would be likely to "sue
the company".
Urell explained that EBASCO employees were
laid off in December 1985 and April 1986, in part,
because of the company's cash-flow problems.
Employees were chosen for layoff on the basis of
comparative evaluations, the guidelines for which
were meant to insure fairness. However, it
became clear that most of the guidelines were
actually subjective, and the key was the supervisor
doing the evaluating. As a result, since Greenwell
did the evaluating of Goldstein and other I&C
supervisors prior to the April 1986 layoff, and since
earlier disputes had occurred between Greenwell
and Goldstein, it was a foregone conclusion that
Goldstein would receive one of the lowest
evaluations. (See R-2, R-6, R-7-R-21)
[Page 11]
Urell also testified about Goldstein's various
non-quality complaints, and my impression was
that he was sincere in his conclusion that
Goldstein had suffered no religious discrimination in
August 1985.
Testimony of Kenneth Parent:
Parent testified that he began work at the South
Texas Project at the end of May 1985. He was
initially assigned to work with Goldstein to familiarize
himself with the job routine, and then on June 19,
1985, he began supervising the "B" shift. After
June 19, he saw Goldstein only on shift rollover
days, and he had practically no relationship with
him. In fact, Goldstein complained to Greenwell
about Parent and his crew. On July 13, 1985
Goldstein gave Parent a list of suggestions and
criticisms of the "B" shift's work. (R-47) The list
appears "picky" though not unfriendly. Nevertheless,
Parent interpreted it as unwarranted criticism,
and he complained to Greenwell about it.
Around July 18 or 19, Goldstein brought the
thermo well problem to Parent's attention. By his
own admission, Parent did not know the proper
procedures to follow regarding the thermo wells.
Parent also readily admitted that his crew
damaged the flux mapping skid, but he termed the
skid "non-safety" equipment. He verified the
testimony of other witnesses on the point that it
seemed to take an inordinate amount of time to
get an NCR written so that the skid could be
moved and repaired.
Testimony of Charles Jones:
Jones worked as a foreman under Goldstein
from mid-1984 to late 1985, and he considered
Goldstein a "good" supervisor. He testified that
Goldstein knew the intricacies of his field well and
got along well with his men and foremen. He also
stated that compared to Goldstein, Parent put
more emphasis on the quantity of work done.
Jones' assessment of Parent and his "B" shift
[Page 12]
was similar to Goldstein's in nearly all particulars.
He confirmed the details of the thermo well and
flux mapping skid problems, which he believed
involved the "B" shift's failure to follow proper site
procedures for a safety-related building and
equipment. Jones also believed Parent, not Goldstein
was the obstructionist in shift rollover communications.
He testified that Parent did not really seem
interested in his job, but more interested in
subjects such as fishing and football.
Jones was not shaken in cross-examination and
testified throughout in a forthright manner, even
though he expressed some concerns of possible
reprisals by EBASCO.
Testimony of Paul Plociennik:
Plociennik was an EBASCO supervisor at the
same level as Greenwell, and the evidence
showed that this supervisor received uniformly
good work evaluations. (J-30)
Despite some knowledge of Goldstein's prior
problems with Greenwell, Plociennik actively
sought out Goldstein to work for him in December
1985. Goldstein worked under Plociennik from
December 1985 through March 1986. During that
time, Plociennik prepared an evaluation of
Goldstein which rated him satisfactory and
considerably higher than evaluations prepared by
Greenwell. It is significant that Blackwood, who was
Plociennik's supervisor, "insinuated" that he had
rated Goldstein too high. Blackwood indicated to
Plociennik that "there were other problems in the
past" with Goldstein and that "perhaps
[Goldstein] was going to sue the company".
When Goldstein was assigned to his
department, Plociennik was instructed not to have
Goldstein do any safety-related work. He was also told
about Goldstein making records of incidents and
otherwise being hard to work with. Even so, in a
minor manner, Goldstein did do some safety-related
work assigned by Plociennik.
Plociennik also testified that Greenwell did not
contact him for input into Greenwell's evaluation
[Page 13]
of Goldstein in preparation for the April 1986
layoff. This was despite the fact that Greenwell
had not personally observed Goldstein's work
under Plociennik.
Testimony of Kenneth Gilkerson:
Gilkerson, a Quality Assurance investigator for
EBASCO, led the investigation of Goldstein's
quality concerns. At the hearing, he confirmed the
Conclusions in his November 1985 investigation
report. (C-4, C-25, C-40) Gilkerson believed that
even though the thermo well and flux mapping
incidents were not "earth shattering", they were
important. Further, he thought it significant that the
problems were ignored or "not identified".
Gilkerson also concluded that Goldstein may have
suffered adverse consequences for having brought
up quality concerns. He testified that Greenwell
refused to sign a summary of a meeting between
himself and Quality Assurance interviewers.
(C-38)
I note that SAFETEAM also conducted an
invention of the thermo well incident at
Goldstein's request. The SAFETEAM investigator
concluded that EBASCO had not attempted to "cover
up" the incident and that EBASCO had not
discriminated against Goldstein for voicing quality
concerns. (C-10, C-72-C-76, C-87) I further
note that no SAFETEAM investigator was called
as a witness.
Mr. Gilkerson's impression as a witness was
very good. He came across as an able investigator
who searched for the truth regardless of
possible adverse consequences to management.
Discussion and Findings
Goldstein's Request for Formal Hearing
As required under the Act and regulations,
Goldstein filed a complaint against EBASCO, and
DOL conducted a timely investigation of the
complaint. As stated above, Director Daniel Brown of
[Page 14]
DOL gave Goldstein notice of the results of the
investigation by letter dated June 16, 1986. (29
C.F.R. §§ 24.3, 24.4) To prevent Brown's denial of
the complaint from becoming a final order,
Goldstein was required "within five calendar days of its
receipt [to file] with the Chief Administrative Law
Judge a request by telegram for a hearing on the
complaint." He was required to send copies of his
request to EBASCO and to Brown. (29 C.F.R.
§ 24.4(d)(2))
EBASCO argues that Goldstein's request for
formal hearing was not timely because the Chief
Administrative Law Judge did not receive
Goldstein's telegram of June 24, 1986. EBASCO
asserts that the Chief Administrative Law Judge did
not receive notice of Goldstein's request for
formal hearing until August 5, 1986, when he
received a letter from Goldstein dated July 28,
1986, stating that Goldstein had sent the telegram
on June 24. In addition, EBASCO did not receive
a copy of Goldstein's request for hearing until
after October 21, 1986.
As stated above, however, Goldstein testified
that he sent the telegram on June 24. In addition,
the copy of the telegram in evidence (C-12),
which was properly addressed, is stamped with
the date June 24, 1986. As a result, I find that
Goldstein substantially complied with § 24.4(d)(2).
(See Wayner Tractor, Inc. v. Shields , 381 F.2d
4411 (9th Cir. 1967)) I find the failure to send a
copy of the request for hearing to EBASCO of
little importance because such copy was later
supplied, and EBASCO suffered no detriment due
to the brief delay. I response to Goldstein's
testimony and Exhibit C-12, EBASCO has not shown
by a preponderance of the evidence that the Chief
Administrative Law Judge failed to receive the
June 24 telegram. Therefore, I do not dismiss
Goldstein's appeal on the basis of § 24.4(d)(2).
Prime Facie Case:
Goldstein must establish the following:
[Page 15]
1. He engaged in "protected activity" under the
Act;
2. EBASCO had knowledge of his protected
activity;
3. EBASCO discriminated against him; and
4. EBASCO's discrimination was due, at least in
part, to Goldstein's protected activity. (Mackowiak
v. University Nuclear Systems, Inc ., 735 F.2d 1159
(9th Cir. 1984))
I will analyse the issue of whether Goldstein
engaged in protected activity under each of two
opposing views. First, under Brown & Root, Inc. v.
Donovan , 747 F.2d 1029 (5th Cir.1984), internal
quality control complaints are not considered
protected activity. However, in addition to filing a
complaint with EBASCO's Quality Assurance
Department, Goldstein also filed a complaint with
SAFETEAM. Goldstein's testimony and
documentary evidence adequately support the view that
Goldstein could well have believed SAFETEAM to
be a group independent of EBASCO that would
begin the process of bringing quality concerns to
the Nuclear Regulatory Commission ("NRC").
Postings about SAFETEAM were quite visible
throughout Goldstein's work area, and very little
was advised as to the means of notifying NRC
about quality concerns. (C-122-C-124) In
addition, the Act defines protected activity as the
"commencing" or "causing to be commenced" of
a complaint to the NRC. (42 U.S.C. § 5851(a)) I
find Goldstein did engage in protected activity
under the Fifth Circuit view.
Under Willy v. Coastal Corp. , 85-CAA-1 (June
4, 1987), and Mackowiak, supra , internal
complaints are considered protected activity. Under
this view, I find there is no doubt that Goldstein's
complaint to Quality Assurance constituted
protected activity.
EBASCO argues that Goldstein's concerns
about the thermo well and the flux mapping skid
were trivial. However, the court in DeFord v.
Secretary of Labor , 700 F.2d 281, 286 (6th Cir. 1983),
held that "the need to protect an employee who
participates in agency investigations clearly exists
[Page 16]
even though his contributions might be merely
cumulative". Evidence provided by an employee
need not be unique. (DeFord, supra ) As a result, I
find that the subject matter of Goldstein's
concerns fits within the protected conduct
contemplated by the Act.
The fact that EBASCO knew Goldstein engaged
in the activity which I have found as protected
activity was not disputed, and I so find.
It was also not disputed that EBASCO laid
Goldstein off on April 11, 1986. I find that the
layoff constituted discrimination under the Act.
(Due to the strict time limitations of the Act,
Goldstein is not permitted to base his claim on any of
EBASCO's earlier actions. (42 U. S. C.
§ 5851 (b)(1))2
I must next determine whether the layoff was
due, at least in part, to Goldstein's protected
activity, the filing of the Quality Assurance and
SAFETEAM complaints. The evidence shows that
Goldstein did create problems for his immediate
supervisor and other managers by his insistence
on disputing evaluation reports and "griping"
about work comforts. In filing his quality
complaints, the defense views Goldstein as having
been motivated to correct or improve his work
evaluations in order to improve his "image" with
the company. However, several witnesses testified
that Goldstein also cared about turning out quality
work, and Goldstein's own testimony was credible
on that point. I find that Goldstein has met his
burden of raising the inference that his protected
activity was the likely reason for the layoff.
Defense:
Under the dual motive test, EBASCO must
produce rebuttal evidence of legitimate, nondiscriminatory
reasons for laying off Goldstein. I must
then consider whether Goldstein has shown either
that EBASCO's reasons for the layoff were
pretextual or that EBASCO was more likely motivated by
discriminatory reasons (i.e., Goldstein's protected
conduct). Finally, EBASCO must establish that it
[Page 17]
would have laid off Goldstein even in the absence
of his protected conduct. (Dartey v. Zack Co. ,
80-ERA-2 (April 25, 1983))
EBASCO must first produce rebuttal evidence of
legitimate, nondiscriminatory reasons for laying off
Goldstein. I find EBASCO has met that burden
through Greenwell's evaluations of Goldstein and
other evidence tending to show that Goldstein
was laid off because he was a disruptive
employee who ranked low in comparison to other
employees. EBASCO presented evidence that
disputes over evaluations, desk space, and a "fruit
basketful" of other concerns disrupted orderly
work progress for Greenwell, Blackwood, and
others in the organization. (Note: I give little
weight to accounts of an altercation between
Goldstein and Greenwell in December 1985. This
isolated instance of tempers flaring between two
antagonists proves little for either side.)
I must next consider whether Goldstein has
shown either that the above nondiscriminatory
reasons for the layoff were pretextual or that
EBASCO was more likely motivated by discriminatory
reasons. I find Goldstein has not shown that
EBASCO's proffered reasons are pretextual.
There were too many signs of genuine annoyance
at Goldstein's gadfly tactic;, though I do not
consider some of the means of attempts to silence
him particularly noble. However, Goldstein has
shown that EBASCO also was motivated by his
filing of the quality complaints, or that EBASCO
had dual motives. I find it significant that EBASCO
at first considered puffing Goldstein on , then took
Goldstein off the list for the December 1985
layoff, because the investigation of his quality
concerns was still in progress. I also find it significant
that Greenwell was selected to evaluate Goldstein
in preparation for the April 1986 layoff, with no
input from Plociennik. The evidence, including the
above, and the downward spiral of job assignments
to non -safety related work strongly
suggests that Goldstein's complaints about quality
motivated retaliation.
My final finding is that EBASCO did not , by a
[Page 18]
preponderance of the evidence, prove that it
would have laid off Goldstein even in the absence
of the protected conduct. Goldstein has shown
that there was retaliation, by way of the final
evaluation and layoff, motivated, at least in part, by his
engagement in protected activity.
Damages:
At the hearing, the parties entered into the
following stipulation regarding damages. In the event
that I ruled in favor of Goldstein, he was to be
entitled to back pay from April 11, 1986, to
September 15, 1987, in an amount equal to his wages at
EBASCO minus wages he has actually earned
since his layoff. He was to be entitled to costs of
$4,314.00. If I did not reinstate Goldstein, the
parties agreed that front pay was to be calculated in
the following manner: Goldstein's salary at
EBASCO minus the salary he is now earning. The
parties said they would submit more information
on damages in their briefs, but they did not do so.
Under 42 U.S.C. § 5851 (b)(2)(B) and 29 C.F.R.
§ 24.6(b)(2) and (3), 1 cannot accept the parties'
stipulations in their entirety. The Secretary must
reinstate Goldstein to the same or a substantially
equivalent position at EBASCO, and the Secretary
may not provide for compensation such as "front"
pay not specifically authorized under the Act.
(DeFord, supra )
IT IS RECOMMENDED THAT:
1. EBASCO be found liable for violation of the
Act.
2. EBASCO be ordered to reinstate Goldstein to
his former position or a substantially equivalent
position with the same terms, benefits, conditions,
and privileges he would have enjoyed had
EBASCO not laid him off on April 11, 1986.
3. EBASCO be ordered to pay Goldstein back
wages (less any interim earnings) plus interest
from April 11, 1986, until the date of his reinstatement.
Interest shall be paid pursuant to 28 U.S.C.
[Page 19]
§ 1961 (1982). The amount of Goldstein's interim
wages is to be determined on the basis of his
W-2 forms and other tax records, which he shall
submit.
4. EBASCO be ordered to expunge from its
records the evaluations of Goldstein, prepared by
Greenwell, upon which the April 1986 layoff was
decided. (R-38, R-39)
5. EBASCO be ordered to pay Goldstein
compensatory damages of $20,000.00.
6. EBASCO be ordered to pay costs and
attorney fees, the amounts of which are to be
determined on the basis of the parties' written
agreement and/or an attorney fee petition to be
submitted within ten days of this Decision and Order;
with Employer's response subsequent to receipt
of said petition.
ROBERT J. BRISSENDEN
Administrative Law Judge
RJB:scm
[ENDNOTES]
1 The following abbreviations are
used in this Decision and
Order: Complainant's and Respondent's exhibits are referred
to as "C" and "R", respectively; and the transcript of the
hearing in this matter is referred to as "Tr.".
2 The earlier actions by
EBASCO, claimed as adverse by
Goldstein, are for purposes of delineating a pattern of behavior
considered in the discussion of motives, infra .