Dated: Jul 17 1989

Case No. 89-ERA-22

In the Matter of:

SHANNON T. DOYLE,
   Complainant

    against

HYDRO NUCLEAR SERVICES,
   Respondent

    This matter arises under the Energy Reorganization Act of 1974 as amended U.S.C. § 5851 (1982) and its implementing regulations, 29 C.F.R. Part 24 (hereinafter referred to as the Act). The Act prohibits any person from discharging or otherwise discriminating against an employee, who has engaged in activity protected by the Act.

    Shannon T. Doyle, the Complainant in this matter, filed a complaint with the Wage and Hour Division, United States

Department of Labor, alleging that he was discharged by Respondent Hydro Nuclear Services, Inc. because he was engaged in activity protected by the Act.

    The District Director for Employment Standards Administration, Wage and Hour Division on February 23, 1989 issued its notification of findings letter, finding "All evidence indicates that Hydro Nuclear Services, Inc. terminated your employment solely because of your refusal to sign the firm's standard Privacy Act waiver form and not because of your prior admitted whistleblower activities. Termination of employment for the above stated reason is not a protected activity under the Energy Reorganization Act."

    February 27, 1989, Complainant timely filed a telegraphic request for formal hearing.

    A Notice for formal hearing was set for April 25, 1989 and upon Respondent's motion said matter was continued and reset for June 7, 1989. On May 16, 1989 Complainant filed Motion for Summary Judgment. On May 25, 1989, Respondent filed Countermotion for Summary Judgement. Pursuant to telephonic conference call of June 5, 1989, both parties were granted

additional time to file supplemental memorandum in support of said summary judgment motions and the hearing set for June 7, 1989 was continued by the Court. Complainant's memorandum was filed and Respondent's response was also filed and both have been reviewed by me in rendering this decision.

HAS THE PLAINTIFF ENGAGED IN ANY ACTIVITIES WHICH ARE CONSIDERED "PROTECTED ACTIVITIES" UNDER THE ACT.

   In the Respondent's Pre-Hearing Statement the following stipulation of facts by the parties was set forth:

    1. After telephone conversations with another Westinghouse staffing personnel, Shannon T. Doyle spoke to Rick McCormick, Field Personnel Coordinator, at the end of October, 1988, about working for HNS at D.C. Cook in Bridgeman, Michigan. Mr. McCormick told Mr. Doyle he would be paid .20 per mile for the drive from Mr. Doyle's home in Alabama to D.C. Cook, and, for his work at the plant, $48.00 per diem, and $6.50 per hour.

Mr. McCormick told Mr. Doyle that he would be working 72 hours per week at D.C. Cook.

    2. On November 7, 1988, at the D.C. Cook location, Mr. Doyle met Dan Haynes, HNS Plant Coordinator, who paid Mr. Doyle $182.60 for his travel mileage to Michigan. Mr. Haynes also paid him $48 for his per them for November 6, 1988, his travel date, and $336 as per them for the week of November 7th through 13th. Mr. Haynes instructed Mr. Doyle to attend training sessions at D.C. Cook on November 8th. Mr. Doyle attended those sessions.

    3. On November 9th, Mr. Doyle took the Minnesota Multiphasic Personality Inventory test, a psychological test. At approximately 11:30 a.m., Mr. Doyle reported to the Cedarwood Medical Center for drug screening.

    4. On a date which is in dispute, Mr. Haynes informed Mr. Doyle that the preliminary results of the drug test were positive. Mr. Haynes did not identify to Mr. Doyle the substance for which he tested positive. Mr. Haynes gave Mr. Doyle the telephone number for Rick McCormick.

    5. On November 14, Mr. Haynes gave Mr. Doyle his per diem payment for the week of November 14th through 20th.

    6. Mr. Doyle contacted Mr. Haynes on November 17th, at which time Mr. Haynes told him he had heard nothing further about the drug test.

    7. Mr. Haynes contacted Mr. Doyle on November 18th to tell him the final drug screening test results were negative. Mr. Haynes then asked Mr. Doyle to complete an employment application. Mr. Doyle went to the plant that day to up the application. Mr. Doyle was to complete the application over the weekend.

    8. In the early morning of Monday, November 21st, Mr. Doyle took the completed application to D.C. Cook. Mr. Haynes told Mr. Doyle to return at 11:30 a.m. to receive his per diem payment.

    9. The employment application included an Authorization for Release of Information and Records form (a copy of which is attached hereto and marked ALJ Exhibit #1). Mr. Doyle had crossed out the second paragraph of the form and then signed it.

    10. Later that day, Mr. Doyle spoke with Robert Booker to express his reluctance to sign the authorization form. Mr. Doyle stated that he would sign it provided the second paragraph was deleted or amended to retain his rights under the Energy

Reorganization Act. Mr. Booker told Mr. Doyle that, unless he signed the release form in its entirety, HNS would cease any further consideration of employing him. When speaking to Mr. Booker, Mr. Doyle mentioned a previous whistleblower incident in which he was involved.

    11. Mr. Doyle told Mr. Booker that he planned to return to his home in Alabama. He also asked that Mr. Booker make certain that he receive all of the money owed him. Mr. Doyle was not paid at that time for his trip home.

    12. After Mr. Doyle left Michigan, Dan Haynes sent him a money order in an amount equal to the payment for his mileage to Michigan, that is, $182.60. He also sent Mr. Doyle a second money order in the amount of $48 as his final per diem payment.

    For purposes of ruling on the motions for summary judgment, the respondent has agreed to allow me to assume that Complainant was an employee of Hydro Nuclear Services.

    Complainant in his Motion for Summary Judgment argues that Complainant's refusal to sign the unaltered release form was an attempt by him to protect and preserve Complainant's rights and therefore was a protected activity under the Act. He further argues that a mandatory requirement that all personnel sign such a release is discriminatory in nature since "a person who may consider an action would give up his right to initiate that action." In Complainant's supplemental memorandum of June 7, 1989, he contends that Respondent had three separate and different authorizations all of which satisfy the requirements of the Privacy Act and the applicable standards of the American National Standard on Security for Nuclear Power Plants (ANSI/AN-33). Complainant contends that there is no requirement that an individual "release anyone from any and all liability as results of furnishing or receiving (any) information." He further argues that Respondent's position that the release includes such a waiver so as to allow a former employer to speak freely without fear of legal retribution, runs counter to the employee protection provisions of the ERA.

    Respondent in its Countermotion for Summary Judgment contends that Complainant's refusal to sign the unaltered release form is not a protected activity. In order to protect against a threat from someone inside the company, a comprehensive screening program in accordance with ANSI is required; including the obtaining of signed releases from the individual to obtain the necessary information. Respondent argues that the second paragraph

of the standard release form (which Complainant struck out) merely releases and discharges Respondent and any organization listed in the first paragraph of the release, furnishing or receiving any information pertaining to the individual "only from any liability or claim resulting from furnishing or receiving such information pursuant to the I authorization." Respondent further argues that "the employer should be able to protect itself against any claim arising out of the innocent, but necessary provision or receipt of information. . . Moreover, the release is extremely narrow and only applies to that which flows from the act of turning over records to the Respondent. It does not release anyone from any illegal acts under the ERA or Atomic Energy Act."

    I agree with this last argument by Respondent. Complainant has misconstrued the effect of the language of the release. He incorrectly believes that his release would jeopardize any "whistleblower" remedies he may be pursuing against other entities. I totally agree with Respondent's analysis of the legal effect of the release in question. Moreover it would be against public policy to allow an employer to be relieved of liability under the Act by reason of obtaining an employee's signed release. Complainant had he signed said release, would not have released any of his rights to pursue whistleblower remedies. I thus find that his refusal to sign said unaltered release was not a protected activity under the Act. I further find no merit in Complainant's argument that Respondent had three signed releases which satisfied past ANSI standards. Those three releases did not contain the language which Complainant had refused to sign namely the "release of liability" language. Respondent had a right to require all prospective employees to sign such a release in order to obtain all necessary information pertaining to an individual's post record. Since Complainant refused to accept this requirement I find that this Respondent had a legal right to refuse to employ Complainant. Employers who hire workers for nuclear power plants must ensure the health and safety of the public by carefully screening all prospective employees. This Respondent in requiring all employees including Complainant to sign its release was exercising an essential step in performing its duty of responsible investigation and screening of employees.

    In conclusion I recommend to the Secretary of Labor that the Complainant's Motion for Summary Judgment be denied and that an Order and Decision granting Respondent's Motion for Summary Judgment be issued and that the complaint of Shannon T. Doyle should be dismissed.

       RICHARD D. MILLS
       Administrative Law Judge

Metairie, Louisiana

1256 N CHURCH STREET MOORESTOWN, NJ 08057 (609) 722-5700

In accordance with the Privacy Act (5U.S.C. 552a), I, the undersigned, expressly authorize any person, association, firm, company, criminal justice agency, Credit Extending Organizations, schools, ILLEGIBLE or Hospitals, Department or agency of a City, County, or State Government, or the Federal Government to release and furnish to Hydro Nuclear Services and its authorized representatives any and all information and records, reports, transcripts, abstracts, military records, criminal records, or any other information.

Further, I hereby release and discharge Hydro Nuclear Services, their representatives, and their clients for whom the investigation is being performed and any organization listed above furnishing or receiving any information pertaining to me from any and all liability or claim as results of furnishing or receiving such information pursuant to this authorization.

Hydro Nuclear Services is authorized to utilize the information it obtains for the purpose of evaluation my eligibility for clearance, allowing unescorted access to Nuclear Power Stations, as required by Government regulations.

A photo copy of this authorization shall be deemed an original and shall be accepted as such by any person or organization.

Name Printed _____________________Date________________

Date of Birth__________(Furnished for reasons of positive I.D.)

Social Security # ____________________________________

Present
Address_______________________________________________

____________________________________How Long__________

Signature___________________________________________________