Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991)

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USDOL/OALJ Reporter
Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON. D.C.

DATE: October 30, 1991
CASE NO. 86-ERA-39

IN THE MATTER OF

TERRY G. DYSERT,
COMPLAINANT,

WESTINGHOUSE ELECTRIC CORP.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

The Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988), submitted a Recommended Decision and Order (R.D. and O.) recommending that the complaint be denied. The R.D. and O. states the fact, in considerable detail, R.D. and O. at 2-17.

Briefly, Complainant was employed by Respondent as a senior engineer in its Nuclear Service Integration Division in 1981. In June 1986, Complainant was assigned to a four person team to

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test certain instruments which had been installed at Georgia Power Company's Vogtle Nuclear Power Station. R.D. and O. at 3. During the month that complainant was at the Vogtle site, he made several complaints to the team leader, Richard Kerr, about the procedures used in testing the instruments. Id. at 20.

On July 9, 1986, Complainant and Mr. Kerr had an argument during which Complainant allegedly struck Mr. Kerr several times causing bruises and contusions. R.D. and O. at 20; T. (Transcript of hearing) 691; 1,487. Respondent investigated this allegation and concluded that it was true. R.D. and O. at 20; T. 707; 955-956. Respondent discharged Complainant for "physically striking another employee. . . " C (Complainant's Exhibit)-12.

DISCUSSION

The ALJ held that Complainant did not engage in any protected activity because "all of his complaints were strictly intracorporate and internal in nature . . . ." R.D. and O. at 20. The ALJ took note of the decisions of the courts of appeal in Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986), and Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984), and presumably was aware of the Secretary's decisions which were affirmed on this point in those cases. Nevertheless, the ALJ concluded that the decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), that internal complaints are not protected under the ERA, "is the better view." R.D. and O. at 19.

There are no appellate decisions under the ERA on this point in either the Third or Eleventh Circuits.¹ However, the Secretary has held consistently and in numerous cases that internal complaints are protected activities under the ERA. See, e.g., Lopez v. West Texas Utilities, Case No. 86-ERA-25, Sec. Dec., July 26, 1988, slip op. at 5; Francis v. Bogan, 2 O.A.A. 3 (1988), p. 200, Case No. 86-ERA-8, Sec. Dec., Apr. 1, 1988, slip op. at 3, and cases cited therein. Furthermore, the Secretary has made it clear that an ALJ has "no authority . . . to refuse to follow clearly applicable precedent from the Secretary. . . ." Lockert v. Pullman Power Products Corp., Case No. 84-ERA-15, Sec. Dec., Aug. 15, 1985, slip op. at 2-3. I hold that Complainant's internal complaints here were protected activities under the ERA.

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The ALJ found that, after an investigation, Respondent concluded in good faith that Complainant had assaulted Mr. Kerr and Complainant was discharged for that reason alone. Complainant excepted to the ALJ's decision raising several major points. First, Complainant argues that Respondent did not prove that Complainant actually assaulted Mr. Kerr. Exceptions to Recommended Decision of Administrative Law Judge and Brief on Behalf of Terry G. Dysert, Complainant (Comp. Exceptions) at 26. However, Respondent did not have the burden of proving that the attack took place. Rather, Complainant had the burden of proving by a preponderance of the evidence that retaliation for protected activities was a motivating factor in Respondent's decision to discharge Complainant. See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8, citing Texas Dep't of Community Affairs v. Burdine, 454 U.S. 248 (1981). Complainant met his initial burden under Dartey v. Zack Company of establishing a prima facie case: he engaged in the protected activity of making complaints about the testing procedures, his complaints became known to management and he was discharged a short time thereafter, giving rise to an inference that the discharge was motivated by the protected activity. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). Respondent then met its burden of articulating a legitimate reason for the discharge -- Complainant's assault on Mr. Kerr. Dartey v. Zack Company, slip op. at 8; Morgan v. Massachusetts General Hospital, 901 F.2d 186, 191 (1st Cir. 1990) (striking co-worker legitimate grounds for discharge).

The extensive record in this case has been reviewed and I find that Complainant has not proven that Respondent's proffered reason was pretextual or that a discriminatory reason more likely motivated Respondent. Respondent conducted an investigation of Mr. Kerr's allegation, and I agree with the ALJ that Respondent reached the conclusion in good faith that Mr. Kerr was telling the truth and that Complainant was not, based on the inconsistency between Complainant's statements about several incidents, including the attack on Mr. Kerr, and the statements of several other employees, which were mutually consistent. See T. 707; 955-956; 1,117-1,127. An employer's discharge decision is not unlawful even if it was based on a mistaken conclusion about the facts,² but a decision violates the Act only if it was motivated by retaliation. Morgan v. Mass General, 901 F.2d at 191; see Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.

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1989), and cases cited therein; Jefferies v. Harris County Community Action Asso., 615 F.2d 1025, 1036 (5th Cir. 1980). Complainant argues that the record shows disparate treatment between Complainant and another member of Respondent's team of engineers working at the Vogtle plant. The other engineer had an argument with Mr. Kerr and at one point grabbed Mr. Kerr's elbow and moved him toward a wall. T. 1,269; 1,478. Respondent concluded that this incident was not comparable to Complainant's attack on Mr. Kerr, T. 920, and I find nothing in the record to show that this conclusion was a pretext for discrimination against Complainant or that there was disparate treatment between Complainant and the other engineer. I find that Complainant did not sustain his burden of proving that a "similarly situated employee . . . [was] not treated equally." Burdine, 450 U.S. 248, 258. See also Morgan v. Mass. General, 901 F.2d at 191; see McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976) (plaintiff must show that offenses "of comparable seriousness" were committed by other employees who were not fired); Moore v. Charlotte, 754 F.2d 1100, 1107 (4th Cir. 1985) (court must assess "the gravity of the offenses on a relative scale . . . 'in light of the harm caused or threatened to the victim or society and the culpability of the offender."')

Finally, Complainant argues that the investigation conducted by Respondent into Mr. Kerr's allegation did not have even the "semblance of a fair hearing . . . ." Comp. Exceptions at 29. Complainant concedes, however, that due process requirements are not applicable to a private employer's decision making. Complainant must show, rather, that Respondent's procedures were so inherently unfair that discrimination can be inferred from it. Morgan v. Massachusetts General Hospital, 712 F. Supp. 242, 253 (D. Mass. 1989) (termination decision reviewed by several people with no knowledge of plaintiff's situation, but without a "full and fair hearing", does not justify inference of discrimination) aff'd, in part, vacated, in part, on other grounds, 901 F.2d 186. Respondent conducted an investigation into Mr. Kerr's allegation and other allegations against Complainant which were brought out during that investigation. Whether those allegations were true depended, in the final analysis, on the credibility of Complainant and the other employees interviewed. Respondent's decision to believe the other employees and not Complainant does not imply discrimination.

Accordingly, I find that Respondent did not violate the Act

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when it discharged Complainant. The complaint in this case is DENIED.

SO ORDERED.

LYNN MARTIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ I need not consider which circuit court of appeals would have jurisdiction to review the final agency order here. See 42 U.S.C. § 5851(c)(1).

² I note that, contrary to Complainant's assertion that Respondent produced no evidence of the attack on Mr. Kerr, Mark Marscher testified that he saw Mr. Kerr's bruises and contusions several hours after the attack took place. T. 1,365.