House v. Tennessee Valley Authority, 91-ERA-42 (ALJ Apr. 10, 1992)

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USDOL/OALJ Reporter
House v. Tennessee Valley Authority, 91-ERA-42 (ALJ Apr. 10, 1992)

U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
(609) 757-5312
FTS 488-5312

DATED: April 10, 1992
CASE NO: 91-ERA-42

James E. House,
Complainant,

Tennessee Valley Authority,
Respondent

Tennessee Valley Authority,
Complainant,

James E. House,
Respondent

Dorothy B. Stulberg, Esquire
For Complainant House

Brent B. Marquand, Esquire and
John E. Slater, Esquire
For Respondent Tennessee Valley Authority

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Before: RALPH A. ROMANO
Administrative Law Judge

RECOMMENDED
DECISION AND ORDER

On November 21, 1990, Complainant¹ filed a complaint (ALJ 10)² pursuant to 29 C.F.R. 24.3 alleging that Respondent violated the provisions of the Energy Reorganization Act of 1974, 42 U.S.C. Section 5851(a) (hereinafter the "Act").

By letter dated May 21, 1991,³ the United States Department of Labor informed the parties that its investigation of the complaint disclosed sufficient evidence to support the alleged violation (ALJ 11).

By telegram dated May 22, 1991 (ALJ 1), Complainant requested a hearing pursuant to 29 C.F.R.24.4(d)(2)(i)⁴ . Respondent made a similar request by telegram dated May 24, 1991 (ALJ 2).

A hearing was held in Knoxville, Tennessee on October 30 and 31, 1991. Post-hearing briefs were filed by the parties on March 6, 1992. RX 18, JX 1, CX 3 and CX 4, submitted post-hearing, are received in evidence ⁵ .

At the hearing, all parties agreed to a waiver of the decisional time requirements provided at 42 U.S.C. 5851(b)(2)(A) and 29 C.F.R. 24.6(a) and (b). (Tr. 38).

By motion of March 17, 1992, opposed March 27, 1992 by Respondent, Complainant seeks "to delete" paragraph 12 of the Stipulation of Facts admitted in evidence (ALJ 12; Tr. 34, 35). This motion is hereby denied, as there is no justification to relieve counsel of an otherwise binding trial commitment, nor to entertain her "further reflection" on this matter.

THE LAW

42 U.S.C. 5851(a) reads as follows:

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Employee protection

(a) Discrimination against employee No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of 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,).

Under this statute, it must be proven ⁶ (1) that the party charged with discrimination is an employer subject to the Act ⁷ : (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee commenced or was about to commence, testified or was about to testify, assisted, participated, or was about to assist or participate in any proceeding, or in any other action to carry out the purposes of 42 U.S.C. § 5851 (Energy Reorganization Act) or 42 U.S.C. § 2011 (Atomic Energy Act). See, DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

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COMPLAINANT'S CASE

Mr. House avers that because he reported to the Nuclear Regulatory Commission (NRC) a faulty locking mechanism on a door located within Respondent's nuclear plant, Respondent retaliated/discriminated against him: (1) by withdrawing his medical work-duty fitness approval (hereinafter "S-1"), (2) by withdrawing his clearance for unescorted access to the plant (hereinafter "NPA"), (3) by contesting his claim for (FECA) worker's compensation benefits, and (4) by harassing personal contacts with him by Respondent supervisors (Compl't Br., 6-10).

He seeks an unidentified amount of compensatory damages, a declaration that " ... he is entitled to return to work as soon as he is able", and the upholding of the previously noted Department of Labor decision in his favor (Compl't Br. 12, 13).

The testimony of Complainant and his wife was presented at trial in support of his case. Certain portions of a deposition of his treating psychiatrist, Dr. Glenn R. Peterson (CX 3, 4) were also offered in support of his claim.

THE DEFENSE

Respondent argues, first, that Complainant's report to the NRC is not an activity protected under the Act, as the faulty lock created an industrial, rather than nuclear, hazard (Resp. Br., 20-22). Moreover, Respondent urges that the S-1 and NPA withdrawals and its controversion of Complainant's FECA claim were lawfully and appropriately necessitated under the facts surrounding such actions (Resp. Br., 22-31). Harassment of Complainant by Respondent officials is denied (Resp. Br., 32).

The testimony of five of its employees, together with that of Drs. Sajwaj and Zachary (by deposition - RX 18) is offered in its defense.

Respondent seeks dismissal of Complainant's complaint (Resp. Br, 36).

ISSUES

1. Whether Complainant engaged in an activity protected under the Act.

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2. Whether Respondent unlawfully retaliated/discriminated against Complainant as a result of such protected activity.

FINDINGS AND CONCLUSIONS

I. PROTECTED ACTIVITY ISSUE

Jeff Swanson, the mechanical maintenance manager at Respondent's plant, testified at some length about the room in which Complainant was trapped due to the faulty door lock. While he stated that there would be no need to access this room if and when the plant became nuclear in operation ⁸ (Tr. 250, 251), he also admitted that employee presence in this room during future nuclear operation is possible (Tr. 244, 253). That the possibility of such employee presence during nuclear operation breakdown presents the possibility of a nuclear safety hazard to any such employee who was trapped as was Complainant, is also admitted by Mr. Swanson (Tr. 245). What Complainant reported, therefore, was clearly a matter to which nuclear safety related. Simply put, a faulty lock on a door in an operating nuclear plant leading into a room in which an employee may be present during a nuclear breakdown at that plant, is, no doubt, a potential nuclear safety hazard. And it was the existence of just such a (uncontested) faulty lock that Complainant reported to NRC. Respondent's argument that NRC is not statutory cognizant of "plant conditions which result in occupational [vs. nuclear] risk..." (Br., at 22), entirely begs the question whether the risk here is occupational or nuclear.

I find that Complainant's report to NRC was an activity protected under the Act.

II RETALIATION ISSUE

A. S-1 Withdrawal

After an October 10, 1990 unsuccessful attempt to return to work ⁹ , Complainant telephoned Respondent's Medical Services Department and reported that his psychiatrist, Dr. Peterson, instructed him to remain out of work for a few days. Dr. Peterson wrote to Respondent's Dr. Zachary on October 13,

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1990 that Complainant suffered from "severe claustrophobia and panic disorder" and was "totally disabled from work" (ALJ 12 - Pars. 8, 9; RX 6; RX 9).

Complainant agrees that due to these above circumstances, Dr. Zachary, in accordance with Respondent's standard practice, withdrew medical approval for further work duty (ALJ 12 - para 9; RX 8; RX 18, at 6-10). Future medical approval for work duty was noted as possible subject to release by his private physician (RX 8). Complainant also agrees that thereafter Dr. Zachary informed Dr. Sajwaj (a psychologist at Respondent) of the circumstances involving Complainant, and that upon Dr. Sajwaj's recommended withdrawal of the S-1 medical approval, made in accordance with Respondent's standard medical guide, Dr. Zachary withdrew such approval (ALJ 12 - para. 11; RX 18 at 12, 13; Tr. 157-159; RX 11; RX 12). There is no evidence that either Dr. Zachary or Dr. Sajwaj was aware of Complainant's report to NRC prior to the above events ¹⁰ .

Thus, the evidence points clearly to the conclusion that the S-1 withdrawal was a purely ministerial medical decision, made and effectuated in accordance with Respondent's standard policies. Complainant has failed to establish any factual predicate to support his assertion of retaliation in this regard.

B. NPA Withdrawal

Complainant agrees that Ralph Thompson (Respondent supervisor) revoked his NPA because such was necessitated, in accordance with Respondent's procedure, by reason of the S-1 withdrawal (ALJ 12, para. 12). Also, there is no evidence that Mr. Thompson was aware of Complainant's report to NRC prior to his revocation ¹¹ . Complainant has thus failed to carry his burden on this score.

Complainant suggests, as regards the foregoing S-1 and NPA withdrawals, that I draw an inference of retaliation based upon: an alleged agreement among three of Respondent employees to delay withdrawal of the S-1, and the timing of the actual withdrawals (Compl. Br., at 6,7).

The alleged agreement (Tr. 60) falls short of probative or relevant value on the issue of retaliation. Does Complainant

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suggest that this agreement rendered Dr. Zachary's S-1 withdrawal retaliatory? There is no evidence that Dr. Zachary knew of this agreement prior to his withdrawal action, and even if he did, his withdrawal has not been shown to be any the less procedurally required by Respondent's policy!

As to the timing of the withdrawals (Tr. 58, 59), it appears that Complainant, in part, asserts that, coming at a time when he was making "... progress with [his] doctor... " (Tr. 58), these withdrawals resulted in a setback in his medical improvement. While there is no basis to question Complainant's conclusion on this point, I fail to see how this unfortunate confluence of events, without more, inferentially or otherwise establishes retaliatory conduct on the part of Respondent. While Complainant may have "...felt [Respondent] did it out of retaliation, [that it] ... wasn't necessary to do that" (Tr. 58), [and that it was] ... the last thing [he] wanted [Respondent] to do..." (Tr. 59), such feelings, however understandable under the circumstances, do not establish the fact of retaliation, especially where Complainant agrees that Respondent's agents (Dr. Zachary and Mr. Thompson) were required to effectuate the withdrawals (ALJ 12, pars. 9, 11, 12). Moreover, Complainant's offering that since he "... was off from work anyway [and] wasn't working...[there existed no] point [other than retaliation to] pulling [his] S-1 clearance" (Tr. 58), misses the mark by ignoring the admitted fact that the letter from his own psychiatrist alerting Respondent to the gravity of complainant's illness (RX 9) had set in motion certain required action on the part of Respondent's agents leading to an immediate withdrawal of these clearances (see RX 16, at IX 3I; Tr. 157-160; ALJ 12, para. 9, 10, 11, 12).

C. FECA Claim Defense

Despite Complainant's insistence to the contrary, Respondent has established a rationally-based, altogether appropriate justification for its contest of Claimant's workman's compensation claim arising out of the subject incident ¹² . There clearly existed questions whether complainant's alleged psychological injury arose from the incident in question or from his prior psychological infirmity, and whether Complainant's report of the circumstances surrounding the incident was accurate (ALJ 12, par. 15; Tr. 125, 126, 151, 113-16, 123-127).

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Furthermore, there is no evidence that Respondent's agents charged with the responsibility of processing the claim (Christman and Walker) knew of Complainant's report to NRC prior to the lodging of the controversion to the claim (Tr. 128, 139, 151).

D. HARASSMENT CLAIMS

There is no probative, corroborated, credible testimony ¹³ in this record that the contacts (by telephone or in person) between Respondent's agents and Complainant after the subject incident were of a nature other than cordial, sympathetic and appropriate to the circumstance (ALJ 12, pars. 17-19; Tr. 259-260, 263-267).

I find that the record evidence fails to establish that complainant was in any way retaliated/discriminated against because of his protected activity, and that such evidence establishes that the clearances were withdrawn, the workman's compensation claim contested, and the personal contacts made, for appropriate, legitimate reasons.

RECOMMENDED ORDER

On the basis of the foregoing, I recommend that the complaint be dismissed.

RALPH A. ROMANO
Administrative Law Judge

DATED: April 10, 1992
Camden, NJ

[ENDNOTES]

¹ Although Mr. House has withdrawn his request for hearing, for purposes of this proceeding he is designated "Complainant." Tennessee Valley Authority will be referred to as "Respondent."

² References herein are as follows: "ALJ" - Administrative Law Judge Exhibits, "C" - Complainant Exhibits, "R" - Respondent Exhibits, "Tr." - transcript, "JX" - Joint Exhibits.

³ By mutual agreement of the parties, this determination was rendered beyond the 30 day requirement of 42 U.S.C.5851(b)(2)(A) and 29 C.F.R.24.4(d)(1).

⁴ As noted, this request was later withdrawn (Tr. 11).

⁵ "Exhibit 1" annexed to Complainant's brief is otherwise in evidence as Rx 5. "Exhibit 211 annexed to that brief is otherwise in evidence as CX 1. The portion of Dr. Peterson's deposition annexed to that brief is remarked and admitted as CX 4.

⁶ The burden of proof clearly lies with Complainant, and it was so ruled at the hearing (Tr. 21, 22). Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Billings v. TVA., 87-ERA-5 (9/25/90), aff'd sub nom. Billings v. Dole, 936 F.2d 572 (6th Cir., 1991).

⁷ There is no issue as to this element of proof in this case.

⁸ Respondent's plant is being constructed for nuclear operation and was not "on-line" at the time of trial (Tr. 243, 251).

⁹ The incident of Complainant being trapped in the Post Accident Sampling Room due to the faulty lock occurred on October 5, 1990 at approximately 7:30 pm (ALJ 12- pars. 3, 4).

¹⁰ Dr. Sajwaj's testimony that he was unaware of that report (Tr. 163, 164), is uncontradicted in this record.

¹¹ Thompson's testimony that he did not know of the reporting prior to his NPA revocation (Tr. 174-175), is uncontradicted in this record.

¹² It is unnecessary to reach the election of remedies or First Amendment arguments raised by Respondent relative to this issue (Resp. Br., at 26-30).

¹³ Complainant and his spouse's equivocal testimony on this allegation is less than convincing (Tr. 55-57; 99-101).