DATE: September 28, 1993
CASE NO. 85-ERA-34
IN THE MATTER OF
THOMAS G. BASSETT,
COMPLAINANT,
v.
NIAGARA MOHAWK POWER CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This proceeding arises under the employee protection or
whistleblower provision at Section 210 of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988), and is before me for review pursuant to 29 C.F.R.
§ 24.6(b) (1992).
Complainant, a quality assurance engineer for Respondent,
contends that he was improperly and discriminatorily evaluated in
his work performance in retaliation for his engaging in conduct
which is protected under the ERA. A hearing was held and the
Administrative Law Judge (ALJ) issued a Recommended Decision and
Order (R.D. and O.) on October 17, 1985. The ALJ concluded that
the complaint should be dismissed because Complainant had failed
to show an adverse employment action and, as a result, had failed
to establish a prima facie case under the ERA. The parties have
filed post-hearing pleadings which I accept as briefs in
opposition to and in support of the R.D. and O. [1]
For the reasons below, I reject the ALJ's conclusion that no
adverse employment action has been established. I agree,
however, that this complaint must be denied because,
although Complainant engaged in protected conduct, he failed to
meet his burden to establish that the adverse action was
[PAGE 2]
retaliatory discrimination. [2]
Complainant contends that certain narrative comments
contained in his 1985 performance evaluation were made by his
manager, David Palmer, in retaliation for Complainant's efforts
to promote safety goals prescribed by the Nuclear Regulatory
Commission (NRC) and as punishment for his earlier diligence in
the performance of protected quality assurance functions.
Respondent contends that Complainant's performance
evaluation/rating and the commensurate salary increase which
resulted from it simply do not add up to the type of harm or
injury which must be present to support a finding of
discriminatory treatment under the ERA.
The challenged comments pertain to Complainant's performance
of his assignment to draft Respondent's quality assurance
procedures, as required by the NRC under 10 C.F.R. Part 50,
Appendix B (1992). This task required Complainant to coordinate
and resolve comments received from various sources regarding the
procedures.
The ALJ described the performance evaluation as follows:
Though generally favorable, the performance rating
contained a comment ascribed to Palmer that indicated
that his [Complainant's] meeting expectations in regard
to the goal associated with procedures was
"borderline," adding that his performance will have to
improve or an unsatisfactory rating may result.
Findings of Fact No. 9, R.D. and O. at 3.
. . . [H]is rating was said to be considered borderline
between "met expectations" and "did not meet
expectations."
R.D. and O. at 5.
The ALJ found that Palmer's comment did not constitute an
adverse employment action. The ALJ found no proof of disparate
treatment or disparate impact, no adverse economic effect, and no
change in working conditions. The ALJ explained that Palmer's
comment:
. . . was not a direction to cease protected activity
under a threat of discharge or disciplinary action, but
was a bluntly worded caution that better performance in
that area was expected. . . .
R.D. and O. at 6 (citation omitted). Finally, the ALJ emphasized
that despite Complainant's fears that the "negative comment"
might affect his future opportunities, there is no evidence that
Complainant has been harmed or prejudiced to date by the comment.
[PAGE 3]
Id.
I find that the ALJ has too narrowly defined the adverse
action element of a prima facie case of retaliation. The ALJ
improperly concentrates on the lack of any adverse economic
impact resulting from the "negative comment," and appears to
improperly consider Respondent's motive, which is irrelevant at
this stage of the analysis. SeeDeFord v. Secretary of
Labor, 700 F.2d 281, 286-87 (6th Cir. 1983); Assistant
Secretary and Guernsey v. J.E. Nelson Transportation, Case
No. 91-STA-24, Sec. Dec. and Ord. of Rem., Feb. 13, 1992, slip op
at 12. Further, a complainant need not "prove that he was
treated differently from other similarly situated" employees to
establish a prima facie case. DeFord, 700 F.2d at 286;
Helmstetter v. Pacific Gas & Electric Co., Case No.
91-TSC-1, Sec. Dec. and Ord. of Rem.,
Jan. 13, 1993, slip op. at 9. In this case, the negative
comments and warning contained in Complainant's 1985 performance
evaluation are an adverse work evaluation, affecting the terms of
Complainant's employment and they constitute an adverse
employment action. See 42 U.S.C. § 5851(a);
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987);
seealsoMcCuistion v. TVA, Case No. 89-ERA-
6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 8; Ryan v.
Niagara Mohawk Power Co., Case No. 85-ERA-24, Sec. Fin. Dec.
and Ord., Mar. 7, 1986, slip op. at 2; cf. Stoller v.
Marsh, 682 F.2d 971, 976-78 (D.C. Cir. 1982), cert.
denied, 460 U.S. 1037 (1983). [3]
The ALJ found that Complainant engaged in protected conduct
and I agree. In earlier years, Complainant's duties required him
to make internal audit reports to management with regard to
safety related concerns. See Findings of Fact Nos. 11-12,
R.D. and O. at 4-5; Transcript (T.) at 33, 39-40, 171-72. It is
protected conduct for an employee to file internal quality
control reports and to make internal complaints regarding safety
or quality problems. Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Shusterman,
slip op. at 8; seealsoPassaic Valley Sewerage
Comm'rs v. United States Dep't of Labor, 992 F.2d 474, 478-80
(3d Cir. 1993). Complainant also engaged in protected activity
in October 1984, when he provided both oral and written testimony
on his concerns to the NRC. See 42 U.S.C. §
5851(a)(2),(3); Findings of Fact No. 13, R.D. and O. at 4, 5.
These protected activities, however, do not raise an inference of
retaliation. As the ALJ found, the supervisors involved in
Complainant's 1985 performance evaluation had no knowledge of
Complainant's statements to the NRC. Findings of Fact No. 14,
R.D. and O. at 4. The temporal remoteness of Complainant's
auditing work to the adverse evaluation also refutes a causal
connection. Shusterman, slip op. at 8-9. Complainant's
principal auditing work occurred in
[PAGE 4]
1982 and 1983, long before this complaint was filed, and
Complainant engaged in no nuclear auditing work in the year which
preceded the evaluation. See T. at 169-72. Furthermore,
Complainant does not strenuously press auditing work as a
motivating factor for the adverse evaluation. He testified in
response to the ALJ's direct inquiry that it is "very hard for me
to identify any one specific case which can be called a cause of
specific reprisal." T. at 39. For purposes of this case,
however, I will assume that Complainant's recent assignment to
coordinate and resolve various comments in order to draft quality
assurance procedures implicitly requires Complainant to raise
quality problems or make quality control reports, which is
sufficient to constitute protected conduct and which raises an
inference of retaliation. SeeCouty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989) (temporal proximity between adverse
action and protected activity justifies inference of retaliatory
motive).
Regardless, Respondent has presented nondiscriminatory
reasons for the adverse evaluation sufficient to rebut the
presumption, and Complainant has not shown that the reasons are
pretextual. The adverse comment resulted not from Complainant's
performing his job thoroughly and diligently but because
Complainant's supervisors were dissatisfied with his lack of
initiative and felt his performance could be improved. T. at
169, 173-78. The testimony of a supervisor, William Connolly,
establishes that Complainant was not fully meeting the goals
which his supervisors had set out for him in his new assignment.
Instead of consolidating comments from the various sources with
whom he was to be the contact person, Complainant seemed to be
just passing them along, thus hindering the development of
unified comments. Connolly testified that it was his perception
that Complainant was not aggressively pursing his new assignment,
including the primary function of comment coordination. T. at
176, 177.
Also significant is Complainant's 1984 performance
evaluation in which Complainant indicated "retirement" as his
career goal. See T. at 76, 77; Complainant's Exhibit 2.
Given this indicia of Complainant's attitude, it is not
surprising that management viewed him as lacking initiative and
as possibly requiring written incentive for improvement.
I have considered Complainant's arguments that Respondent's
motive was improper, but the arguments are unpersuasive. That
Complainant and his supervisors submitted written rebuttal and
surrebuttal regarding the performance evaluation and held an
"unusual" conference shows only that he and they strongly
disagreed and, quite typically, became combative over the
evaluation. Although Complainant alleges that the criticism in
the evaluation had not been raised previously "during the course
[PAGE 5]
of the past year," this allegation is not convincing here where
the criticism came less than five months after the new assignment
and was tantamount to a "bluntly worded caution that better
performance in that area was expected." See Complainant's
Rebuttal at 2; R.D. and O. at 6. Complainant has not shown that
his performance on the new assignment was other than described by
Respondent. [4]
Accordingly, the complaint IS DENIED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
OAA:WLAUDERDALE:tm:February 19, 1996
Room S-4309:FPB:219-4728
[ENDNOTES]
[1] In addition, Complainant has filed follow-up statements in
which he asks for reconsideration based on "new" evidence.
Respondent has filed a memorandum in opposition. As explained
infra at page 5 n.3, I deny Complainant's request.
[2] Under the whistleblower provision of the ERA, an employee
alleging unlawful retaliation can establish a prima facie case by
showing (1) that the employee engaged in conduct protected by the
ERA; (2) that the employer was aware of that conduct and took
some adverse action against the employee; and (3) that the
inference is raised that the protected activity was the likely
reason for the adverse action. Shusterman v. Ebasco Services,
Inc., Case No. 87-ERA-27, Sec. Fin. Dec. and Ord., Jan. 6,
1992, slip op. at 5-6, aff'd mem., Shusterman v.
Secretary of Labor, No. 92-4029 (2d Cir., Sept. 24, 1992).
The employer may rebut this showing by establishing that the
adverse action was motivated by legitimate, nondiscriminatory
reasons. The employer, however, bears only a burden of
production of the rebuttal evidence; the ultimate burden of
persuasion regarding the existence of retaliatory discrimination
rests with the employee. Once the employer satisfies its burden
of production, the employee then must establish that the
proffered reason is pretextual. SeeSt. Mary's Honor
Center v. Hicks, No.92-602, 1993 U.S. LEXIS 4401, at 15-16
(U.S. June 25, 1993).
[3] The "new" evidence proffered by Complainant consists of
testimony concerning a subsequent event, which was elicited
during the course of an administrative hearing on a second ERA
complaint filed by Complainant, Bassett v. Niagara Mohawk
Power Co., Case No. 86-ERA-2. The evidence is offered to
dispute the ALJ's finding of no adverse employment action,
specifically his ruling that the possibility of injury from the
adverse performance evaluation is purely speculative. Since I
conclude that the record before the ALJ supports a finding of
adverse action, the additional evidence proffered by Complainant
is immaterial and his request that the record be reopened for its
admission is moot. Cf. 29 C.F.R. §§ 24.6(b),
18.54(c) (1992). I also note that the additional evidence is not
"newly discovered," i.e., in existence, but discovered
after the hearing. Boyd v. Belcher Oil Co., Case No. 87-
STA-9, Sec. Dec. and Ord., Dec. 2, 1987, slip op. at 3, and cases
cited therein.
[4] Although Complainant refers to "harassment" since 1981, I
agree with the ALJ that the only action specifically and timely
raised here is the 1985 performance evaluation, R.D. and O. at 4,
which I find nondiscriminatory. "Mere continuity of employment,
without more, is insufficient to prolong the life of a cause of
action for employment discrimination." Delaware State College
v. Ricks, 449 U.S. 250, 257 (1980).
