U.S. Department of Labor
Office of Administrative Law Judges
Mercedes City Center
200 S Andrews Avenue Suite 605
Ft. Lauderdale, FL 33301
DATE: Dec 13 1989
Case No.: 89-ERA-0028
89-ERA-0029
In the Matter of
FLOYD (Mitchel) SIMMONS, and
LARRY SIMMONS,
Complainants
v.
FLORIDA POWER CORPORATION, and
FLUOR CONSTRUCTORS, INC.,
Respondents
APPEARANCES:
Louis D. Putney, Esq., and
James D. Clark, Esq.,
For Complainants.
Louis Sapp, Esq.,
James R. Wiley, Esq., and
Michael J. Glymph, Esq.
For Respondents.
BEFORE: E. EARL THOMAS
District Chief Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under Section 210 of the Energy
Reorganization Act of 1974, 42 U.S.C. § 5851 (ERA or Act) and the
implementing regulations set forth at 29 C.F.R. Part 24. Section
210 provides for investigations, hearings and remedial actions
against employers in the nuclear power industry who retaliate
against workers who complain about nuclear safety matters.
[Page 2]
Section 210(a) provides the following:
No employer, including a Commission licensee, an
applicant for a Commission license, or a contractor or
a subcontractor of a Commission licensee or applicant,
may discharge any employee or otherwise discriminate
against any employee with respect to his compensation,
terms, conditions, or privileges of employment because
the employee (or any person acting pursuant to a
request of the employee)-
(1) commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of
1954, as amended (42 U.S.C.A. § 2011 et seq.), or
a proceeding for the administration or enforcement
of any requirement imposed under this chapter or
the Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any other manner in such a proceeding or in
any other action to carry out the purposes of this
chapter or the Atomic Energy Act of 1954, as
amended [42 U.S.C.A. § 2011 et seq.].
42 U.S.C. § 5851(a).
STATEMENT OF THE CASE
On February 22, 1989 and March 16, 1989, brothers Floyd and
Larry Simmons filed complaints under the Act against their former
employer, Fluor Constructors, Inc. (Fluor), and Florida Power
Corporation (Florida Power). Complainants allege that they have
been discriminatorily blacklisted by Fluor and Florida Power on a
continuing basis since March of 1988, as the direct result of
having engaged in activities protected under the ERA. In their
complaints, the Simmons Brothers specifically describe two
incidents, occurring on February 13, 1989 and March 6, 1989,
which allegedly illustrate Respondents' blacklisting policy.
[Page 3]
The Administrator of the Wage and Hour Division, Employment
Standards Administration, investigated Complainants' allegations
on behalf of the Secretary of Labor, and found that Respondents
had discriminated against Complainants in violation of the Act.
Respondents were ordered to reinstate the Simmons Brothers to
their former positions, and to pay back wages and benefits from
February 13, 1989, as well as all reasonable costs and expenses
incurred by Complainants in bringing this action. The parties
were advised of the Director's findings by letters dated April
19, 1989 and April 26, 1989.
All parties objected to this determination, however, and
timely requested a formal hearing before an Administrative Law
Judge pursuant to 29 C.F.R. § 24.4(d). Prior to the hearing,
Fluor and Florida Power formally withdrew controversion of the
Director's liability determination. Thus, Respondents continue
to contest only the extent of damages to be awarded the Simmons
Brothers as a result of the discriminatory blacklisting. A
hearing was thereafter held in Tampa, Florida on June 7-8, 1989
on the sole issue of damages, and all parties were afforded a
full opportunity to present evidence and arguments relevant to
this action. The record closed upon receipt of the final
posthearing reply brief on October 25, 1989.
FINDINGS OF FACT AND CONCLUSIONS OF
LAW
A. Background
Although Fluor and Florida Power have conceded liability in
the instant case, the history of the relationship between
Respondents and the Simmons Brothers, as well as the events
leading to these proceedings, remain relevant to any award of
damages.
Floyd and Larry Simmons were employed at the Crystal River
Nuclear Power Plant, located in Crystal River, Florida, for
approximately 17 years. Florida Power owns and operates the
nuclear plant, as well as four coal-fired power plants also
located at the Crystal River facility. Fluor is currently under
contract with Florida Power to provide maintenance services at
the nuclear plant on an as needed basis. As work is assigned by
Florida Power, Fluor "staffs-up" accordingly, providing the
necessary work force to complete the project. Because Fluor's
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operations at the nuclear plant are dependent on sporadic work
assignments from Florida Power, the size of Fluor's work force
fluctuates considerably depending upon the volume of work so
assigned. Thus, no employee is hired on a permanent basis.
The Simmons Brothers were initially hired to work at the
nuclear plant in 1971, while the plant was still under
construction. Following the completion of the plant in 1978,
Complainants were retained as "core" craft employees by the
contractors who successively held the maintenance agreement with
Florida Power, including the present obligor, Fluor, who took
over the contract in 1984. Complainants, therefore, remained
consistently employed at the Crystal River site from 1971 until
they were laid-off by Fluor on March 30, 1988.
As pipefitters with a special expertise in welding,
Complaints' responsibilities over the 17-year period not only
included the typical duties of installing and maintaining the
plant's piping system and the structures which support that
system, but also involved special quality welding in critical
areas within the plant on the piping systems that contain high
pressure steam and radioactive materials. These "x-ray quality"
welds must meet specified standards according to documentation
prepared by Florida Power engineers. All are in agreement that
the Simmons Brothers were valued employees, with highly respected
welding skills.
The professional relationship between Complainants and
Respondents, however, began to deteriorate in early 1988 when the
events leading to this action began to unfold. In February of
1988, Fluor was assigned a project involving the decay heat pits
located in the radioactive control area of the plant. A
radiation work permit was issued by the Florida Power Health
Physics Unit which, among other things, noted that respiratory
protection could be required, since the work was to be performed
in a contaminated area.
On February 8, 1988, Complainants were assigned to the
decay heat pit project. Pursuant to the radiation work permit,
they were provided respirators while working in the contaminated
area. However, on the morning of March 16, 1988, Complainants'
regular request for respirators was denied by the Florida Power
Health Physics Unit who apparently felt protection was no longer
needed in that particular area.
[Page 5]
Still concerned about potential contamination, the Simmons
Brothers pursued the respirator issue with Florida Power
Personnel, and threatened to take the matter to the Nuclear
Regulatory Commission (NRC). Florida Power eventually issued the
requested protection and Complainants completed the work they had
started on the project. Shortly thereafter, Complainants were
laid-off on March 30, 1988.
The Simmons Brothers subsequently filed complaints against
Fluor under the ERA, alleging retaliatory discharge.
Administrative Law Judge Rudolf L. Jansen conducted a full formal
hearing of these complaints on August 8, 1988. Although Judge
Jansen found that the Simmons Brothers had engaged in a protected
activity by reasonably refusing to work without respirators, and
had successfully established a prima facie case of discrimination
under the ERA, he additionally found that the lay-off action
would have occurred regardless of any forbidden retaliatory
motivation by Fluor, due to business necessity. Judge Jansen
found that at the time the Simmons Brothers were laid-off,
Fluor's work load under its maintenance contract with Florida
Power was diminishing, with corresponding decreasing manpower
needs. Thus, drastic manpower reductions were required,
including the lay-off of the Simmons Brothers. Since Fluor was
able to establish a legitimate, non-discriminatory reason for
discharging the Simmons Brothers, Judge Jansen determined that
the Act had not been violated and Complainants were not entitled
to a remedy. Simmons v. Fluor Constructors, Inc., 3 OALJ 1, 27;
88-ERA,-28 & 30 (ALJ, Recommended Decision and Order, February 8,
1989).
Complainants appealed Judge Jansen's Recommended Decision
and order, and that case is currently pending before the
Secretary of Labor. Since the Simmons Brothers' complaints of
retaliatory discharge have been previously adjudicated, the
legitimacy of their discharge is not at issue in the instant
proceedings. Complainants now charge that Respondents have
violated the ERA, independent of the lay-offs, by refusing to
rehire the Brothers when Fluor later increased its work force
again after receiving additional maintenance projects from
Florida Power. In other words, once the legitimate business
purpose for the lay-offs established by Fluor in the prior
proceedings before Judge Jansen no longer existed, Respondents
violated the ERA by blacklisting the Simmons Brothers in
retaliation for their reasonable refusal to work without
[Page 6]
respirators, and subsequent complaints to the NRC and the
Secretary of Labor.
B. Blacklisting
The Secretary of Labor has defined the term blacklisting as
"'[a] list of persons marked out for special avoidance,
antagonism, or enmity on the part of those who prepare the list
or those among whom it is intended to circulate ... '" Egenrieder
v. Metropolitan Edison Co., 85-ERA-23, slip op. at 6, n.6 (Order
of Remand by Secretary of Labor, April 20, 1987) (citing BLACK'S
LAW DICTIONARY 154 (5th ed. 1979)). Blacklisting an employee, in
retaliation for his having engaged in a protected activity, is an
express violation of the Act pursuant to 29 C.F.R. § 24.2(b).
Fluor and Florida Power do not contest the charge that a
blacklisting policy was instituted against the Simmons Brothers
in violation of the ERA, beginning in August of 1981.
Fluor retained three pipefitters following the discharge of
the Simmons Brothers on March 30, 1988. Sometime during the
first of August 1988, two pipefitters, Billy Weigelt and Ron
Renny, were recalled by Fluor, bringing the total number of
pipefitters to five. Fluor operated at this level until February
13, 1989 when nineteen new pipefitters were hired to do
overhauling work during an unscheduled outage. Twelve more
pipefitters were also hired on March,. 16, 1989 to help complete
the project. While many of these employees have since been laid
off, at the time of the hearing in June of 1989, a total of nine
remained employed by Fluor: two of the original three who were
retained on March 30, 1988; Bill Weigelt and Ron Renny who were
the first to be recalled in August of 1988; J. Acker who was
apparently recalled in September 1988 following the departure of
the original third pipefitter; and four others who were part of
the group hired in February of 1989.
At no point following the March 30, 1988 lay-offs did Fluor
attempt to recall or rehire the Simmons Brothers when additional
manpower was needed. On March 16, 1989, the date twelve more
pipefitters were hired, Complainants were specifically referred
to Florida Power by their local union to fill the positions.
When they arrived at the Florida Power training facility in
Crystal River for badge training before reporting to the plant,
George Renshaw, the Fluor site manager, met Complainants as they
[Page 7]
were approaching a group of previous coworkers. As he turned the
Simmons Brothers away, Mr. Renshaw stated that he could not
rehire Complainants because Florida Power would not allow them to
work at the Crystal River facility.
In addition to the specific instances of failing to rehire,
Complainants also contend that certain false statements regarding
the status of their security clearances were made by a Florida
Power spokesman and published by several local newspapers. On
May 5, 1986, the St. Petersburg Times, Tampa Tribune, Citrus
Chronicle and Ocala Star Banner (Citrus Edition) quoted
statements made by Mark Jacobs, speaking on behalf of Florida
Power, in articles regarding this case. Mr. Jacobs told
reporters that the Simmons Brothers pose an "'unacceptable safety
and security risk at the Crystal River Nuclear Plant,"I without
further explanation. At least one of the reporters interpreted
Mr. Jacob's comments as representing the reason why Complainants
were laid-off and never rehired. Complainants testified that
they have had no problems with safety or security in 17 years of
working at the nuclear power plant, and have never been denied a
safety and security clearance. The Simmons Brothers were often
used for critical welds and had free access, from a security
standpoint, to any area in the plant. As with their continuing
refusal to rehire the Simmons Brothers, Fluor and Florida Power
did not contest Complainants' allegations that these statements
were baseless, and were made in retaliation for their having
engaged in protected activity, in violation of the ERA, as part
of the continuing blacklisting scheme.
Thus as the Respondents have made abundantly clear
throughout the hearing record, the only remaining issues to be
decided in this proceeding relate to the award of damages to
Complainants. More specifically, the parties contest the length
of the recovery period, as well as the type and amount of damages
to be awarded for this period.
C. Period of Recovery
Although Fluor and Florida Power in essence conceded a
blacklisting policy was instituted against the Simmons Brothers
as early as the August 1988 rehirings, Respondents argue that the
complaints filed on February 22, 1989 and March 16, 1989 are
untimely with respect to any discriminatory activities which
occurred more than thirty days prior to the filing of the first
complaint. The ERA's filing provision requires that complaints
[Page 8]
alleging violations of the Act must be joined with the Secretary
of Labor within thirty days after such violation occurred.
42 U.S.C. § 5851(b)(1). Thus, Respondents contend that the
recovery period in the instant case should commence with
the first violation timely alleged.
Complainants in turn argue that the repeated failure to
recall them following their March 30, 1988 discharge constitutes
a "continuing violation" of the ERA, evidenced by Respondents'
admission to a history of a pattern and practice of
discrimination, entitling them to damages incurred as far back as
August 1, 1988. The continuing violation doctrine allows
otherwise stale charges to be revived and considered together
with timely-filed charges if, when taken as a whole, each
violation constitutes a pattern or continuing practice of
discrimination. The Secretary of Labor has applied the
continuing violation doctrine in ERA cases, noting specifically
in Egenrieder v. Metropolitan Edison Co., 85-ERA-23, (Order of
Remand by Secretary of Labor (April 20, 1987)) that blacklisting
may constitute a continuing violation if based on an employee's
protected activity under the ERA. By its very nature,
blacklisting involves a continuing course of conduct.
The parties entered into a stipulation regarding the
recovery period issue at the formal hearing on June 8, 1989.
Respondents agreed that Complaints need not prove that a
continuing violation in fact occurred. However, Respondents
argue that an exception to the continuing violation doctrine
applies to the instant case, as articulated by the U.S. Court of
Appeals for the Eleventh Circuit in Roberts v. Gadsen Memorial
Hosp., 835 F.2d 793, modified on sua sponte reh'g, 850 F.2d 1549
(llth Cir. 1988). Respondents argue that under Roberts, if
Complainants were aware of the prior pipefitter recalls at or
near the time they occurred, believed them to be discriminatory
at the time, yet failed to timely assert their rights under the
Act, the continuing violation doctrine does not allow
Complainants a second chance to file following the lapse of the
statute of limitations with respect to those violations.
The parties have agreed that if Respondents prevail on
their argument that an exception bars application of the
continuing violation doctrine to the instant case, the
appropriate period for relief extends back only thirty days
before the charge challenging the February 1989 recalls. If,
however, Respondents do not prevail, all agree that a continuing
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violation occurred and the recovery period should extend back to
August 1, 1988.
Since the instant case arises in the Eleventh Circuit, the
Court's decision in Roberts must be considered. Roberts involved
an action brought under Title VII of Civil Rights Act of 1964,
42 U.S.C. § 2000(e) et seq. by a black county hospital employee,
claiming that the hospital had discriminated against him on the
basis of race in denying promotion opportunities in 1978 and
1981. Although Roberts' complaint with respect to the 1978
employment action was not timely filed within Title VII's 180-day
statute of limitations provision, he argued that the two
incidents arose out of a pattern or practice of discrimination
which constituted a "continuing violation" of his civil rights.
The Eleventh Circuit reversed the lower court's finding of a
continuing violation, and ordered that the 1978 claim be
dismissed as time-barred. 835 F.2d at 795.
In its first opinion in Roberts, the Court focused on the
lack of a sufficient "nexus" between the two incidents to support
the continuing violation argument. 835 F.2d at 800. However,
the Court later substantially modified its opinion and held that
even assuming such a nexus had been shown and the violation was
continuing in nature, Roberts had admitted that he was aware of
his rights in 1978, and therefore should have asserted them at
that time. 850 F.2d at 1549. The Court noted in reaching its
decision that "[a] claim arising out of an Injury which is
'continuing' only because a putative plaintiff knowingly fails to
seek relief is exactly the sort of claim that Congress intended
to bar by the 180-day limitation period." 850 F.2d at 1550.
Thus, as Respondents argue, Complainants' knowledge of their
rights at the time of the violations, which occurred outside the
ERA's thirty-day filing period, is relevant to determining the
appropriate recovery period in this case.
Both Floyd and Larry Simmons testified that they had become
aware of the August 1988 hirings shortly before the hearing
before Judge Jansen on August 8, 1988. The extent of that
awareness, however, is at issue.
The record contains portions of testimony given by George
Renshaw, Fluor's site manager, on August 10, 1988 at the hearing,
conducted by Judge Jansen. Mr. Renshaw confirmed that Fluor had
recently hired two pipefitters, Belly Weigelt and Ron Renney.
[Page 10]
Mr. Renshaw testified that the Simmons Brothers had not been
recalled because the new work assigned by Florida Power was
primarily tubing mechanical work. Since no welding was required,
it was more efficient to hire mechanical pipefitters than
pipefitters with special welding skills. Mr. Renshaw,
specifically noted that "[i]f it were a welding job and involved
tubing there's no doubt in my mind I would've brought the
Simmonses back ... [i]f I had a welding job out there right now I
would have them out there."
According to Judge Jansen's Recommended Decision and Order,
Complainants subsequently argued that "the failure of Fluor to
rehire them for short-term employment immediately prior to the
hearing in this case constituted a black listing [sic) which also
can be construed to be unlawful discriminatory conduct under
these Regulations." Judge Jansen, however, determined that any
such blacklisting would be a separate violation under the Act and
was not properly before him for consideration, other than as
circumstantial evidence of the unlawfullness of the discharge.
Simmons, 3 OALJ 1 at 36.
The Simmons Brothers, therefore, clearly knew that Fluor
had rehired two pipefitters in August, 1988, at or around the
time the rehirings occurred, or at least as early as August 10,
1998 when George Renshaw testified. It is equally clear from,
Complainants' testimony, both at the hearing and by deposition,
that they suspected at the time that they had been
discriminatorily blacklisted by Fluor, and attempted to assert
their rights in the proceedings before Judge Jansen.
Since Complainants were aware of their rights under the Act
in August 1988, but failed to properly assert them within the 30
day statutory period, their claim with respect to the August 1988
hirings is time-barred under the Eleventh Circuit's decision in
Roberts, despite what appears to be a continuing violation by
Respondents. As the Court noted in Roberts, it is not within the
province of the undersigned to neutralize so explicit a
Congressional mandate as the thirty-day filing requirement,
however repugnant the circumstances. Roberts, 350 F.2d at 1551.
In the alternative, Complainants argue, for the first time
in post-hearing briefs, that Respondents should be equitably
estopped from raising the statute of limitations as a defense.
The Simmons Brothers contend that Respondents, through the
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testimony of George Renshaw, misrepresented or concealed the
facts surrounding the August 1988 recalls, and "lulled"
Complainants into inaction with respect to their claim. The
principals of equitable tolling operate independently of the
continuing violation doctrine. Egenrieder, slip op. at 7.
Equitable tolling has been applied in situations (1) where
the complainant has been actively misled by the respondent
regarding the cause of actin; or (2) has been prevented in some
extraordinary way from asserting his or her rights; or (3) has
previously raised the exact claim but by mistake was raised in an
incorrect forum. McGough v. United States Navy, 2 OAA 3, 213,
86-ERA-18-20 (Decision and Order of Remand by the Secretary of
Labor (June 30, 1988)). Arguably, in the instant case,
Complainants were actively misled by George Renshaw into
believing that they had not been blacklisted with respect to the
August 1988 hirings, and would be rehired when welders were again
needed. In addition, it may be argued that the Simmons Brothers
did timely raise their claim of blacklisting before Judge Jansen
at the prior hearing, although it was in an "incorrect forum."
However, the issues in this case have been intentionally narrowed
by agreement of all parties. Complainants agreed by stipulation
that should their continuing violation theory fail, the
appropriate relief period would begin with the February 1989
violation which was timely charged within the filing period.
Thus, Complainants knowingly and intentionally limited their
response to Respondents' statute of limitations defense to the
continuing violation doctrine, and the defense of equitable
tolling has been effectively waived.
Since Respondents have established that the continuing
violation doctrine may not be applied in this case a continuing
violation has not occurred, despite Respondents' concession that
in substance such a discriminatory pattern and practice in fact
took place. See Roberts, 835 F.2d at 800. The period for relief
must begin with the first violation timely alleged, the February
13, 1989 hiring of nineteen pipefitters.1
1Since there is no continuing violation,
the recovery period
may not begin thirty days prior to the filing of the first
complaint on February 22, 1989, as stipulated by the parties.
The recovery period begins on the date the first timely violation
occurred.
2The request for compensation for
injury to reputation is
limited to Larry Simmons.
3Since administrative proceedings
are not generally the proper
forum to test constitutional issues, Respondents' argument that
the statutory language allowing the Secretary to award
compensatory damages violates their constitutional right to a
jury trial will not be addressed, but is preserved for appeal
purposes.