DATE: December 18, 1992
CASE NO. 85-ERA-16
IN THE MATTER OF
TIENNE ROGERS,
COMPLAINANT,
v.
MULTI-AMP CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order of Dismissal (R.D. and O.) in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988).
Although the parties were given an opportunity to file briefs in
support of or in opposition to the R.D. and O., neither party has
done so. The ALJ found that Complainant had been discharged by
Respondent for legitimate business reasons not related to any
retaliation for her having reported alleged deficiencies to the
Nuclear Regulatory Commission. The ALJ therefore found no
violation of the ERA. The ALJ also found that the facts did not
warrant assessing costs and attorney's fees against Complainant.
The record in this case has been thoroughly reviewed and it
fully supports the ALJ's finding that Complainant was discharged
for legitimate business reasons and not in retaliation for her
complaint to the NRC. I agree with and adopt the ALJ's
disposition of the complaint set forth in the R.D. and O. which
is appended to this order. [1]
The ALJ denied Respondent's motion for attorney's fees and
costs made under Rule 11 of the Federal Rules of Civil Procedure.
The ALJ stated his reasons for rejecting this motion on its
merits, i.e., that Complainant filed the complaint in good
faith
[PAGE 2]
and simply could not carry her burden of proof. The ALJ's
discussion of the issue may imply that in another ERA case
Rule 11 costs and fees might be assessed against a complainant.
The ERA provides that if the Secretary determines that a
violation has occurred, "the Secretary, at the request of the
complainant shall assess against the person against whom the
order is issued a sum equal to the aggregate amount of all costs
and expenses (including attorneys' and expert witness fees)
reasonably incurred . . . in connection with [] the bringing of
the complaint . . . ." 42 U.S.C. § 5851(b)(2)(B). There is
no
provision for the recovery of costs and attorney's fees by a
respondent. I recently addressed the applicability of Rule 11
in another case arising under the ERA. As noted there:
[t]he regulations governing ALJ proceedings
provide that the Federal Rules of Civil
Procedure apply "in any situation not
provided for or controlled by these rules, or
by any statute, executive order or
regulation." 29 C.F.R. § 18.1(a). Because
Section 18.36 of the ALJ regulations provides
a remedy for conduct which is dilatory,
unethical, unreasonable, and in bad faith,
the situation addressed in Rule 11 is
"provided for or controlled" and Rule 11 does
not apply. 1/ SeeStack v. Preston
Trucking
Co., Case No. 89-STA-15, Sec. Dec., Apr. 18,
1990, slip op. at 7-9.
1/ The remedy under Section 18.36 is to
suspend the attorney from participation in
the particular proceeding, an issue which at
this point is moot.
[PAGE 3]
Cable v. Arizona Public Service Co., Case No. 90-ERA-15,
Sec. Final Dec. and Ord., Nov. 13, 1992, slip op. at 5-6.
Accordingly, Respondent's motion for costs and attorneys'
fees is DENIED and the complaint is DISMISSED.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The ALJ followed the Supreme Court's prescription for
the allocation of burdens of proof and production in Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248 (1981), and
applied it to this whistleblower case under the ERA. The Secretary has
adopted the Burdine analysis for whistleblower cases,
SeeDartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision
April 25, 1983, slip op. at 6-9, and the ALJ correctly applied it
here. By implication, the ALJ found that Complainant established
a prima facie case, and that Respondent rebutted it. R.D. and O.
at 4. I agree.
U.S. Department ot Labor
Office of Administrative Law Judges
Suite 901, 1001 Howard Avenue
New Orleans, LA 70113
In the Matter of
TIENNE ROGERS Case No. 85-ERA-16
Claimant
against
MULTI-AMP CORPORATION
Employer
James L. Hicks, Jr., Esq.
1341 Mockingbird Lane
Dallas, TX 75247
For the Claimant
Hershell L. Barnes, Jr., Esq.
Haynes & Boone
3100 Interfirst Plaza
Dallas, TX 75202-3714
For the Employer
[PAGE 4]
Before: JAMES W. KERR, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER OF DISMISSAL
This proceeding arises under the Energy Reorganization Act
of 1974, as amended (hereinafter referred to as the Act) 42
U.S.C. § 5851, and its implementing regulations, 29 C.F.R.
§ 24. Claimant, Tienne Rogers, contends that she was terminated by the
Employer, Multi-Amp Corporation, in violation of the act due to
her submission of a complaint to the Nuclear Regulatory
Commission.
A formal hearing was held in Waxahachie, Texas, January 6-7,
1986, at which all parties were afforded full opportunity to
present evidence and argument. The record closed March 27, 1986
following the receipt of briefs from Claimant and Employer.
The findings and conclusions which follow are based upon the
appearance and demeanor of the witnesses who testified at the
hearing, analysis of the entire record, argument of the parties,
applicable regulations, statutes and case law precedent.
l/
Findings of Fact and Conclusions of Law
Claimant filed a charge with the U.S. Department of Labor
April 26, 1985 alleging discriminatory termination as a result of
a March 7, 1985 report to the Nuclear Regulatory Commission. She
has also filed a complaint with the Equal Employment Opportunity
Commission contending that she was terminated as a result of sex
discrimination and in retaliation for a prior complaint against
Employer. (DX-9A). The Employer claims that Claimant was
terminated for inadequate job performance and not due to either
the complaint filed with the Nuclear Regulatory Commission or the
complaint filed with the Equal Opportunity Employment Commission.
Employer is in the business of providing services, equipment
and personnel to nuclear and fossil power plants in the United
States. The services include mechanical, electrical and control
support as well as training in metrology services to assist in
plant start-ups, testing and routine maintenance. (TR p. 277).
In accordance with NRC regulations, all personnel and equipment
supplied by Employer must be certified. The certification
process is the responsibility of Employer's Quality Assurance
Manager who works under the direction of the Vice-President and
[PAGE 5]
General Manager. (TR p. 274).
The Quality Assurance Manager is responsible for developing
and maintaining Employer's Quality Assurance Program. It is a
responsibility of that office to insure that personnel are
certified according to the applicable federal regulations,
contractual requirements and Employer's internal standards. The
Quality Assurance Manager also monitors the certification of the
measuring equipment utilized or provided by Employer. (TR pp.
27-28). The Quality Assurance Manager reports directly to
Employer's vice-president who has the responsibility of
evaluating the job performance of the Quality Assurance Manager.
Claimant was hired by Employer February 15, 1982. In
October 1983 Claimant assumed the duties of Quality Assurance
Manager in addition to maintaining some responsibility for
training. (TR pp. 23-24; CX-58). Mr. R. D. Allen was Claimant's
supervisor until April 1984 at which time Mr. John Lapicola
became Vice-President and General Manager. (TR p. 29). It
appears that serious disagreements concerning management
decisions began to develop shortly after Mr. Lapicola assumed his
supervisory responsibilities over Claimant. For example,
Claimant complained about being excluded from staff meetings.
Mr. Lapicola testified that staff meetings should be attended by
managers who had sales or costs responsibilities and that it was
unnecessary for the Quality Assurance Manager to attend.
Claimant disagreed with this decision and attempted to continue
to attend the weekly meetings. (TR pp. 33, 259-261).
Claimant also objected to Mr. Lapicola's decision to assign
other tasks in addition to her duties as Quality Assurance
Manager. According to the record, Claimant only worked
exclusively as Quality Assurance Manager during the period March
1984 until July 1984. Even though Claimant admitted that the
quality assurance work was "not extremely time consuming," she
disagreed with Lapicola's management decision concerning
priorities and assignments. (TR p. 26, TR p. 48; CX-58, 61, 62
and 63).
Approximately eight months prior to terminating Claimant,
[PAGE 6]
Mr. Lapicola began documenting incidents which he considered
to reflect unsatisfactory job performance. On September 28,
1984, Mr. Lapicola prepared a memorandum concerning Claimant's
unexcused and excessive absence from work. (EX-l). On October
25, 1984, Mr. Lapicola directed a memorandum to Claimant
concerning her continued unacceptable job performance and
unexcused absences. Claimant was informed again by memorandum
November 5, 1984 that her job performance continued to be
unsatisfactory. Mr. Lapicola advised Claimant that she would be
placed on probation and subject to regular counseling sessions.
Claimant testified that she recognized that Mr. Lapicola was
building a case for terminating her. (CX-68, TR p. 303 and TR
p. 17).
On March 6, 1985 Mr. Lapicola met with Claimant to discuss
her annual performance review. The performance appraisal placed
Claimant in the category of needing improvement which meant that
she did not receive an annual pay increase. (TR pp. 304-305,
EX-8). After receiving the unsatisfactory performance appraisal
and the resulting loss of an increase in salary, Claimant filed a
sex discrimination charge against Employer with EEOC. (TR p.
187, EX-9A). On March 7, 1985 Claimant contacted the NRC by
telephone, alleging that deficiencies existed in the Employer's
Quality Assurance Program. (TR p. l91). The NRC telephonically
contacted Employer concerning the allegation which resulted in a
meeting March 8, 1985 between Claimant, Mr. Lapicola and Mr.
Rubin Esquivel to discuss the reported deficiencies. (TR p.
201). In a memorandum dated March 8, 1985, Claimant identified
four deficiencies in the Quality Assurance Program. (CX-71).
Mr. Lapicola testified that he wished to terminate the
Claimant during the fall of 1984. In April 1985 he again
concluded that Claimant should be terminated, however, Mr. Butch
Ackman, Human Resource Manager, recommended that Claimant should
be given another chance. (TR p. 309). Mr. Lapicola then sent a
memorandum to Claimant dated April 5, 1985, listing four areas
requiring an improved job performance. Later that month,
Claimant advised Mr. Lapicola that she needed to travel to Kansas
City to attend a supervisors meeting. When Mr. Lapicola
requested more information, Claimant submitted a memorandum dated
April 17, 1985 indicating that a certification problem at the
Shearon-Harris project needed to be resolved at that time.
(CX-78). A review of the record reflects that Claimant had
failed to respond to requests for quality assurance
certifications for several employees. (CX-83A, Cx-83B). Mr.
Lapicola testified that he then terminated Claimant due to the
[PAGE 7]
Shearon-Harris certification delinquencies and the prior warnings
concerning her unsatisfactory job performance. (TR pp.
315-316).
The ultimate issue in this case is whether Employer
discriminated or retaliated against Claimant due to her reporting
alleged deficiencies to the NRC. The burden of persuading the
Court that Employer intentionally retaliated due to the
protective activity remains at all times with Claimant. However,
if Claimant establishes a primafacie case, the
burden shifts to Employer to rebut the presumption by producing
evidence that the termination was based on a legitimate,
non-discriminatory reason. The burden then returns to Claimant
to convince by preponderance of the evidence that the legitimate
reasons offered by the Employer are only a pre-text. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
A review of the record in this case reflects that Claimant's
position with Employer became precarious shortly after Mr.
Lapicola became her supervisor. The evidence indicates, and
Claimant admitted during her testimony and in her post-hearing
brief filed March 27, 1986, that Mr. Lapicola considered
terminating her in November 1984, several months before the
telephonic complaint to the NRC. Mr. Lapicola testified at
length during the hearing. While he may be a difficult,
demanding and possibly unreasonable supervisor, there is nothing
to contradict his testimony that he wished to terminate Claimant
several months prior to the complaint to the NRC. The problem
with the delinquent certifications at the Shearon-Harris project
and the amply documented displeasure with Claimant's job
performance constitute a valid non-retalitory basis for the
termination.
It is not the prerogative of this Court to superimpose its
business judgment on Employer or to determine the wisdom of Mr.
Lapicola's decisions. It is the right of the Employer to select
an executive, such as Mr. Lapicola, and for that incumbent to
impose his judgment over the business decisions of a subordinate,
such as Claimant. While the Employer may not violate the act,
Claimant is not immunized from legitimate business decisions,
including termination, merely because she has engaged in
protected activity. On the basis of all of the evidence, the
Court concludes that Employer exercised a legitimate business
decision to terminate Claimant which is not attributable to her
protected activity of complaining to the NRC. In fact, it
[PAGE 8]
appears that Claimant contacted the NRC after she realized that
her position with Employer had become hopeless.
Even though the evidence causes the conclusion that
Claimant's termination was not violative of the Act, the Court
concludes that the facts do not warrant assessing costs and legal
fees against her. During her testimony Claimant appeared candid
and sincere. Claimant genuinely believes that she has been
improperly treated by Employer, specifically, Mr. Lapicola, and
that she has a legitimate grievance. The decision in this case
has been based exclusively on the narrow issue as to whether
Claimant was terminated for complaining to the NRC. It has not
addressed and does not comment on whether Claimant was
unfairly or was the subject of other discrimination. An
assessment of costs against Claimant would have a chilling effect
in cases, such as the one subjudice, in which a
claimant has a legitimate right to request an impartial judge or
jury to review the direct and circumstantial evidence and to
render a judgment concerning the motivational factors.
It is, therefore, ORDERED, ADJUDGED AND DECREED that the
complaint of Claimant, Tienne Rogers, is hereby DISMISSED.
It is further ORDERED that Employer's motion for assessment
of costs is hereby DENIED.
Entered this 4th day of April, 1986, at New Orleans,
Louisiana.
JAMES W. KERR, JR.
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be used throughout
this decision: Claimant's Exhibit - CX, Defendant's Exhibit - DX and
transcript - TR.