DATE: April 21, 1994
CASE NO. 88-ERA-31
IN THE MATTER OF
JOHN R. BRYANT,
COMPLAINANT,
v.
EBASCO SERVICES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
on Remand (R.D. and O.) of the Administrative Law Judge (ALJ) in
this case arising under the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C. § 5851 (1988). This case was
remanded to the ALJ on July 9, 1990, for further consideration of
Complainant's allegations: (1) that Respondent violated the terms
of a Settlement Agreement by refusing to rehire him to a
comparable position, and (2) that Respondent blacklisted him.
After considering the effect of the alleged reemployment terms of
the settlement, the ALJ concluded that Complainant failed to
establish blacklisting or retaliatory refusal to rehire. The ALJ
recommends dismissal of the complaint.
BACKGROUND
Complainant was terminated from his position as a quality
control inspector at the South Texas nuclear plant on January 9,
1987, as part of a reduction in force. He filed a complaint
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alleging discriminatory discharge on January 20, 1987. On April
10, 1987, the parties agreed to settle the matter and signed a
"Release." This had the effect of terminating the first
complaint. Complainant filed a second complaint on January 11,
1988, alleging discriminatory refusal to rehire in violation of a
reemployment term of the April 1987 settlement agreement, and
further alleging blacklisting in retaliation for filing the prior
complaint.
By Order of Dismissal issued on March 15, 1989, the ALJ
recommended granting Respondent's motion for summary judgment and
dismissing the complaint. On review, the Secretary issued a
Decision and Order of Remand, dated July 9, 1990, granting
dismissal in part and remanding in part for further consideration
of Complainant's allegations of blacklisting and refusal to
rehire to a comparable position. [1] The ALJ was instructed to
consider the effect, if any, of the alleged reemployment term of
the prior settlement agreement.
A hearing was held on remand, and the ALJ's R.D. and O. was
issued on February 27, 1992. Both parties responded to an Order
Establishing Briefing Schedule issued on March 11, 1992. [2]
For the reasons discussed herein, I accept the ALJ's
recommendation to dismiss the complaint. The record fully
supports a finding that Respondent Ebasco Services, Inc. (ESI)
proffered legitimate, non-discriminatory reasons for refusing to
rehire Complainant, which were not shown to be pretextual, and
further, that Complainant failed to establish blacklisting by
Respondent. The following discussion clarifies the analysis on
the merits of each allegation raised by Complainant.
DISCUSSION
Under the burdens of proof and production in "whistleblower"
proceedings, a complainant first must make a prima facie showing
that protected activity motivated the respondent's decision to
take adverse employment action. Respondent may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. Complainant
then bears the ultimate burden of persuading that the legitimate
reason proffered by the respondent is a pretext and that the true
reason for the adverse action is discriminatory. St. Mary's
Honor Center v. Hicks, No. 92-602, 1993 U.S. LEXIS 4401, at
15-16 (U.S. June 25, 1993); Dartey v. Zack Company of
Chicago, Case No. 80-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 5-9, citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981).
Finally, when a complainant carries his burden of proving by
a preponderance of the evidence that retaliation was a motivating
factor in the adverse action, i.e. that respondent's
adverse action was motivated by both legitimate and prohibited
reasons,
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the dual motive doctrine applies. Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1163-64 (9th
Cir. 1984); Dartey, slip op. at 8-9. In order to avoid
liability in such a case, respondent has the burden of proving by
a preponderance of the evidence that it would have taken that
same action even if complainant had not engaged in any protected
activity. SeePrice Waterhouse v. Hopkins, 490
U.S. 228, 242 (1989); seeMackowiak, 735 F.2d at
1163; Dartey at 9.
In order to establish a prima facie case, Complainant must
show that he engaged in protected activity, that he was subject
to adverse action, and that Respondent was aware of the protected
activity when it took the adverse action. Additionally,
Complainant must present evidence sufficient to raise the
inference that the protected activity was the likely motive for
the adverse action. Dartey at 5-9.
A. Reinstatement to a comparable position
Complainant made a prima facie showing of discriminatory
refusal to rehire him to a comparable position. It is undisputed
that Complainant engaged in protected activity by refusing to
approve an improper weld, by reporting to the Nuclear Regulatory
Commission (NRC), and by filing his ERA complaint with the
Department of Labor, and that Respondent was aware of this
activity. Complainant presented evidence that as a term of
settlement, Respondent orally agreed to reinstate him to a
position comparable to his former employment, that he has sought
reemployment with Respondent in any position available, and that
he has not been rehired. He also presented sufficient evidence
to raise an inference that his protected activity is the likely
motive for the failure to rehire. The "temporal proximity"
between Complainant's protected activity and the alleged adverse
action is sufficient to raise the inference of causation.
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989);
Thompson v. Tennessee Valley Authority, Case No. 89-ERA-
14, Sec. Final Dec. and Order, July 19, 1993, slip op. at 5.
With respect to the allegation of discriminatory refusal to
rehire, Respondent asserted that there was no oral agreement to
reinstate Complainant, and further, that Respondent is not
qualified for any comparable position available with ESI, because
a high school diploma is required at that level. Moreover,
Respondent asserts that it does not have authority to hire for
other potential positions which do not require a high school
diploma.
The ALJ correctly concluded that Respondent proffered
legitimate, nondiscriminatory reasons for the failure to rehire
Complainant. [3] It is undisputed that Complainant was hired by
Respondent based on a falsified resume, application form and
diploma indicating that he was a high school graduate. The
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application form which was signed by Complainant contained
language that "misrepresentation or omission of facts requested
herein may be cause for dismissal." Ex. P-1. Respondent was not
certain of this falsified resume information until Complainant's
interrogatory answer of September 2, 1988, and his later
admission at the first ALJ hearing on January 24, 1989, Tr. at
13, both following the negotiation of the settlement agreement
and Complainant's filing of his second ERA complaint.
Respondent presented uncontroverted testimony that in
accordance with customary practice, it sought employment for
Complainant before his January 1987 layoff, after his layoff, and
before and after he signed the April 1987 Release, by submitting
his name for work on potential future contracts. ALJ at 6; Ex.
R-10, 16. Further, Respondent proffered evidence that upon
learning of the fraudulent high school diploma, all of
Complainant's work was reinspected at a cost of $50,000, and that
during that period he was not considered for rehire.
The record evidence establishes that a high school diploma
is required for any comparable position with Respondent, a
subcontractor for quality assurance inspection. Moreover,
Respondent explained its hiring practices and showed that the
clients decide which of the offered candidates are hired. With
respect to craftworker (non-quality) positions, Respondent
demonstrated that hiring occurred through Ebasco Constructors,
Inc. (ECI), under a collective bargaining agreement which
required all craftworkers to be union members and hired through a
local union hall. [4]
Complainant has failed to show that Respondent's proffered
reasons for not rehiring him are a pretext for retaliation.
Complainant has provided no evidence to refute Respondent's
hiring practices and has not shown that Respondent hired any
other employee without a high school diploma. Complainant admits
that he is not qualified for positions in a nuclear power
facility.
Complainant essentially is relying on the alleged oral
settlement term of reemployment, and arguing that Respondent
would rehire him despite his lying about a high school diploma,
except that he filed a complaint against them. [5] Even
assuming that Complainant established that his protected activity
played a part in the failure to rehire, I find that under the
"dual motive" analysis articulated in Price Waterhouse v.
Hopkins, 490 U.S. at 242, Respondent has sufficiently
demonstrated that even absent Complainant's protected activity,
Respondent would not have rehired Complainant to a comparable
position under these circumstances. SeeAtchison v.
Brown & Root, Case No. 82-ERA-9, Sec. Dec. and Final Ord.,
June 10, 1983, slip op. at 25-26. [6]
B. Blacklisting
[PAGE 5]
Generally, blacklisting based on a complainant's protected
activity has been recognized as a violation of the ERA.
SeeCowan v. Bechtel Construction, Inc., Case No.
87-ERA-29, Sec. Dec. and Ord. of Remand, Aug. 9, 1989, slip op.
at 3-4; Egenrieder v. Metropolitan Edison Company, Case
No. 85-ERA-23, Sec. Ord. of Remand, April 20, 1987, slip op. at
6. Here, Complainant made a prima facie case of blacklisting.
As discussed above, he established protected activity of which
Respondent was aware. He also presented evidence of "bad paper"
rumors circulated by Respondent's personnel, and indicated that
throughout 1987 and 1988, he was rejected for positions solicited
with other nuclear employers and that his solicitations through
job shoppers were not fruitful either.
I conclude, however, that Complainant has presented
insufficient evidence to carry his ultimate burden of showing
that Respondent has blacklisted him in violation of the ERA.
Respondent has presented credible testimony that the evidence
supporting "bad paper" rumors is subsequent to discovery of
Complainant's misrepresentations and that any references to bad
paper by coworkers refer to Complainant's misrepresentations on
his resume, his lack of qualifications, and the resulting
reinspection of all of his work. Respondent convincingly denies
any blacklisting prior to its knowledge of Complainant's
misrepresentations. Respondent further indicates that on one
occasion it provided information about Complainant to a potential
employer, but it was an honest response to a request for a
reference and concerned the reinspection of Complainant's work
and his lack of qualifications, and was not a retaliatory
blacklisting. Complainant has presented no evidence to establish
that Respondent's rebuttal is a pretext. [7] Accordingly, this complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The decision concluded that Complainant was not qualified
for reinstatement to his former quality control position.
[2] Respondent filed a letter referring me to its Post-Hearing
Brief of January 24, 1992.
[3] Respondent disputes that the reinstatement of Complainant to
a comparable position was a term of the settlement in April 1987.
Based on the evidence, including his credibility determinations,
the ALJ concluded that this was part of an oral agreement between
the parties.
[4] The ALJ's factual finding that ECI was established as an
independently operated company from ESI is based on unrefuted
evidence in the record. Although Complainant challenges this
finding, he presented no evidence in controversion. Respondent
correctly points out that ECI was not a party to the settlement
between ESI and Complainant.
[5] On the particular facts of this case, I find that a
determination that Complainant's reinstatement was a term of the
prior settlement agreement between the parties, does not affect
the outcome of Complainant's allegation that Respondent has
discriminatorily refused to rehire him. Respondent has presented
sufficient evidence of its legitimate reasons for not rehiring
Complainant so as to rule out any discriminatory motive. Without
a showing of retaliatory motive, Complainant cannot prevail under
the ERA. The authenticity of the "Release" or the calculation of
back pay and monetary payment are in dispute. However, alleged
oral terms of settlement are contested. I make no further
findings as to this purported settlement agreement.
[6] In further support of this conclusion, I note that in the
factual situation presented in this employment discrimination
case involving resume fraud which was discovered post-discharge,
the after-acquired evidence doctrine has been applied by the
courts to bar recovery by complainants. SeeMcKennon
v. Nashville Banner Publishing Co., 9 F.3d 539 (6th Circuit
1993); Summers v. State Farm Mut. Auto Ins. Co., 864 F.2d
700 (10th Cir. 1988); Puhy v. Delta Air Lines, Inc., 833
F. Supp. 1577 (U.S. Dist. Ct. for N. D. GA 1993).
[7] By letter of February 14, 1994, Complainant's counsel urged
that consideration of the Supreme Court's decision in ABF
Freight System, Inc. v. NLRB, No. 92-1550, 1994 U.S. LEXIS
1142 (January 24, 1994), would warrant a finding for Complainant
in this case. I disagree. In that case, the employer was found
to have unlawfully discharged the employee for union activities
and to have then used the "lying" excuse as a pretext for the
illegal discharge. In the instant case, I find that Respondent
proferred legitimate reasons for refusing to rehire Complainant,
and that Complainant failed to carry his ultimate burden of
showing that the adverse action was motivated by protected
activity. The decision in ABF Freight does not alter the
outcome or the analysis applied in this case.
