DATE: September 17, 1993
CASE NO. 89-ERA-19
IN THE MATTER OF
SARAH THOMAS,
COMPLAINANT,
v.
ARIZONA PUBLIC SERVICE CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
of the Administrative Law Judge (ALJ) in this case arising under
the employee protection provision of the Energy Reorganization
Act, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ
found the complaint timely as to all of the alleged adverse
actions and found that Respondent violated the ERA when it failed
to promote Complainant, transferred her, assigned her to
demeaning training, and withdrew her certifications to perform
certain tests. I find the complaint timely as to two of the
alleged discriminatory acts, and further, that Respondent
violated the ERA in failing to promote and in withdrawing test
certifications. I will restate the relevant facts to focus the
discussion.
1. The facts.
Complainant Sarah Thomas began working for Respondent,
Arizona Public Service Company (APS), as a Radiation Waste Aide
at its Palo Verde Nuclear Power Plant in 1983. T. 54. Thomas
disliked night shift work because of family responsibilities, and
sought a technician position in the group assigned to Section 11
testing [1] within the Engineering Department, since the
[PAGE 2]
technician job rarely required working at night. T. 55-56. She
began working as the Section 11 technician in June 1984. T. 55.
Thomas' supervisor in Section 11 was Ronald Kropp. T. 57.
In Thomas' first annual performance appraisal as a technician
(June 1985), Kropp rated her "superior," (the second highest
rating), lauded her efforts and ability to work independently,
stated that she maintained the section's personal computer (PC),
and mentioned her proficiency in using several programs on the
PC. CX 6. Writing that Thomas "gives 150% to her job," Kropp
successfully recommended a special salary increase for her that
year. CX 5; T. 63-64.
Kropp again rated Thomas "superior" in her August 1986
appraisal and specially praised her proficiency on
programs on the mainframe time share computer (TSO), her training the
engineering aide to use the PC, and her "considerable
independence of action as . . . lead technician of a procedure."
CX 7. Kropp stated that Thomas "excels at testing and data
management and likes to get out in the field and test."
Id. The 1986 appraisal also mentioned Thomas' need for
training on "LLRT testing" [2] to diversify her experience.
Id.
A difference of opinion arose in Autumn 1986 concerning the
date used to schedule retesting of valves within the purview of
Section 11. T. 73-74. Thomas believed that when the date for
retesting was calculated using the "exercise date" on which each
valve was tested, it was clear when the time for retesting
elapsed (either 30 or 90 days). T. 72. In 1986, APS began to
schedule valves for testing in groups, and the testing period for
a group could extend for as long as six weeks. T. 74. Under the
new system, all the valves in a group were accepted on the same
day ("acceptance date"), and the computer calculated the time for
retesting from the acceptance date. Id. It was therefore
possible that a valve tested at the beginning of a six week
period, and accepted at the end of the period, would not be
retested within 30 or 90 days because of the length of time
between the actual testing of the valve and the acceptance date.
T. 74-75.
Thomas raised concern about the use of the acceptance date
with Kropp, who was "livid" about Thomas' comments and told her
to continue to use the acceptance date. T. 75. She then
discussed the issue with the NRC on-site inspector, Jay Ball.
T. 76, 96-97. Kropp knew that Ball investigated the same issue
that Thomas had raised, but Kropp denied knowing at the time that
Thomas had alerted the NRC. T. 361, 405.
Thomas had another difference of opinion with Kropp in
Autumn 1986 concerning the correct computer on which to track the
valve test data. Initially, the valve data was tracked only on
the TSO. T. 77. Kropp wrote a program for the new PC to track
[PAGE 3]
the data, and for a time, the section used both the TSO and the
PC for tracking. T. 77-78. Thomas and lead engineer Gary Irick
met with Kropp in November 1986 to air their concern that the PC
was unreliable and failed to disclose critical information, and
Kropp reacted angrily. T. 81-83. In December 1986, Kropp
directed Thomas and Irick to use the PC exclusively to track
valve test data. T. 77, 82, 271, 368; CX 9. Also that month,
Thomas began to report directly to technical group lead engineer
Thomas Weber, who in turn reported to Kropp. T. 68-69.
Kropp walked in during a February 1987 discussion in which
Thomas, Irick, and another employee were talking about problems
with the PC-produced information for valve surveillance tracking
(called "ST packages"), and Kropp became very angry. T. 83-84,
275; CX 9. Kropp told Thomas and Irick to throw the ST packages
in the garbage if they were not properly completed. T. 84, 275.
Thomas and Irick testified that NRC regulations required keeping
ST packages for the duration of the license of the plant. T. 84-
85, 275. Although both Thomas and Irick understood Kropp to mean
that they should discard completed ST packages, Kropp stated that
he was referring to piles of incomplete ST packages that were
crowding the control room. T. 372-373.
Thomas and Irick promptly met with Kropp's supervisor,
Gerald Sowers, to discuss the problems with ST packages prepared
on the PC and Kropp's statement about discarding them. T. 85-86;
CX 9. Sowers directed Thomas to resume using the TSO and feed
into it all the data that had been fed only to the PC during the
last few months. T. 86, 276; CX 9. Kropp testified that he was
hurt that Thomas "had gone behind [his] back" on this issue, T.
369, 371, on which Sowers overruled Kropp, T. 276. Irick
testified that Kropp became very angry about being overruled.
T. 277.
A month later, while running the data on the TSO, Thomas
discovered that three valves that had been "cleared" by the PC as
within permissible limits of degradation actually were not, and
should have been placed on 30-day testing. T. 80, 90. Thomas
and Irick reported the problem to Kropp, who told them to
"engineer it away" and did not want them to write a Potentially
Reportable Occurrence (PRO) about it. T. 91-92, 279; CX 9.
Thomas and Irick went over the work, verified that it was
correct, and met with Sowers to inform him of the problem. T.
92, 279-280. Sowers told Thomas and Irick to write a PRO, which
was another occasion on which Sowers overruled Kropp. T. 94.
Kropp again became angry when he found out that Thomas and Irick
had gone over his head. T. 94, 281.
The PRO led to a Licensee Event Report (LER) filed with the
[PAGE 4]
NRC. CX 11. Thomas and Irick believed that the final version of
the LER was not entirely accurate, T. 100-103, and they reported
this and sought correction in a May 1987 memorandum to Sowers.
CX 9. Thomas and Irick testified that after they met with
Sowers, Kropp became unfriendly and avoided any unnecessary
conversation with them. T. 87-88, 95, 108, 277.
In her 1987 annual appraisal, Thomas was again rated
"superior," this time by Weber, who praised her thorough,
meticulous work and completion of assignments ahead of schedule.
CX 8.
There were two levels of test technicians in the engineering
department: technician and senior technician. Promotion to
senior technician, which resulted in higher pay, was "in-family"
and did not require a formal application for a vacant position.
T. 110. Rather, promotion occurred when the supervisor and his
superior approved it. T. 110, 180, 481. Thomas had not yet been
promoted to senior test technician at the time of the hearing in
1989.
In view of Thomas' competence at her work, lead engineer
Irick believed in early 1987 that Complainant was a senior test
technician. T. 120, 287. Irick frequently designated Thomas as
the person to consult when he was not available. T. 120-121,
266. In Spring 1987, Irick recommended that Thomas apply for an
open associate engineer position, which was at a higher
level than senior test technician. T. 288. [3]
Because of difficulty in communicating with Kropp, Thomas
arranged for a member of the personnel department to serve as an
intermediary in a meeting in which she informed Kropp of her
desire for promotion to senior test technician. T. 183-185. At
the meeting, Kropp told Thomas that she was not qualified to be
promoted to senior technician and informed her that she needed
additional experience, including "cross training" in LLRT, to
qualify. T. 384-385, 400. Weber testified that promotion to
senior technician required at least six years of experience as
a test technician. T. 571, 625-626.
Kropp sent Weber a memorandum on October 1, 1987,
reassigning personnel for the purposes of "coverage" in the event
of staff departures and for "diversification of training and
experience" for the two technicians concerned. CX 14. Effective
January 1, 1988, Thomas and technician Larry Trouy swapped
positions, with Thomas reassigned to the LLRT section and Trouy
reassigned to Section 11. No other engineering department
employees have been reassigned between sections to achieve cross-
training, either before or after the reassignment of Thomas and
Trouy. T. 124, 233, 236-237, 436-437, 644.
Shortly after issuing the reassignment memo, Kropp wrote a
memorandum directing the engineering aide to train Thomas on the
[PAGE 5]
PC, and issued a follow-up memorandum a month later because the
training had not occurred. CX 23. Thomas testified that the
training was pointless since she already knew how to do the tasks
covered by the training memo, and demeaning because the assigned
trainer was the aide that Thomas herself had trained to use the
PC. T. 659-661.
Thomas disliked the reassignment to LLRT because it involved
working night shift, exposure to high radiation levels, and was
physically demanding. T. 126-127, 293. In Thomas' first annual
appraisal after reassignment to the LLRT section (May 1988),
Weber rated Thomas lower than she had been rated each year while
working in Section 11. CX 15. While working in LLRT,
Complainant received certifications on the following tests:
CLO-1 (partial), CLO-3 (partial), CLO-5, CLO-6, and CLO-7.
T. 130-134.
In early September 1988, APS issued a directive requiring
technicians to use acceptance criteria that had not been
officially approved for certain tests. T. 135. Thomas
complained about using the non-approved criteria to engineer Jim
Cantrell and lead engineer Weber. T. 136-137, 651.
About three weeks later, engineer Cantrell assigned Thomas
to perform a specific LLRT test, the CLO-6. T. 139. Complainant
testified that because she was feeling ill and lightheaded, she
asked Cantrell to assign another technician to accompany her as
backup when she went to do the test, but Cantrell denied the
request. T. 139, 252. Lead engineer Weber believed Thomas asked
for backup in case the test failed. T. 540. On arrival at the
location of the test, Thomas discovered that the assigned
mechanics had hooked up the test in a manner other than the
standard one. T. 529; RX 14, p. 2. When Thomas asked the
mechanics to change the hookup, they became argumentative.
T. 597-598. In response to a call from Thomas during the
performance of the test, Weber assigned engineer Cantrell and
technician Kern to help her. T. 523. While the test progressed,
the pressure in one of the valves went higher than recommended
but did not cause any damage. T. 530. After Kern's arrival, the
mechanics argued with Kern when he instructed them to hook up the
test the way Thomas had directed, but the mechanics finally
complied, and Thomas successfully completed the test. T. 678-
679.
Kropp assigned Weber to report on the CLO-6 test incident.
T. 413. Cantrell, who had been present, wrote a report to Weber.
See RX 14. In turn, Weber wrote a preliminary report to
Kropp, RX 15 (dated September 28, 1988), in which Weber
recommended a counseling session and additional training for
Thomas, and that Thomas should not perform other tests alone
until she completed one additional demonstration test and oral
exam on the CLO-6.
[PAGE 6]
T. 533, 541, 594; RX 15, p. 2. The day after receiving Weber's
preliminary report, Kropp notified Thomas that he was suspending
her certifications for "all LLRT procedures" pending resolution
of the incident and that she would have to have all of her
certifications revalidated before she could perform any test
alone. CX 32 (dated September 29, 1988). After Kropp sent his
memo suspending Thomas' certifications, Weber met with Thomas,
who allegedly expressed a lack of confidence in performing
certain other tests. T. 534-536. Thomas denied expressing any
doubts about her ability to do the tests. T. 666, 692. Weber
later sent Kropp a final report in which he recommended the
action Kropp had already taken of requiring Thomas to recertify
on all of the LLRT tests. RX 16 (dated October 9, 1988).
Thomas underwent retraining and recertification exams on
all the LLRT tests, a process which she deemed to be demeaning.
T. 135, 419-420. By the time of the hearing, she had been
recertified on nearly all the tests. T. 208. She remained
assigned to the LLRT section through the time of the hearing,
with no mention of a possible return to Section 11. T. 237.
On October 21, 1988, Thomas filed a complaint with the
Department of Labor concerning the withdrawal of LLRT test
certifications, failure to promote, and harassment on the job.
2. Timeliness of complaint.
During the time at issue, an ERA complainant was required
to file a complaint within 30 days after the occurrence of the
alleged violation. 42 U.S.C. § 5851(b); 29 C.F.R. §
24.3(b) (1992). [4] Respondent argues that the complaint was
untimely except as to the suspension of test certifications. T.
31, 37; Respondent's Brief at 4, 41-47. [5] Thomas relies on
the theory of a continuing violation to establish that the
complaint was timely for the alleged discriminatory acts that
preceded suspension of test certifications. Complainant's Brief
at 43. The ALJ found that the complaint was timely as to all
alleged discriminatory acts because it was timely concerning the
withdrawal of LLRT certifications. R.D. and O. at 2.
The fact that one alleged discriminatory act occurred during
the thirty days prior to the filing of the complaint does not in
and of itself determine whether, under a continuing violation
theory, the complaint was timely as to all of the alleged
discriminatory acts. In English v. Whitfield, 858 F.2d
957, 962 (4th Cir. 1988), the Court of Appeals held that under
the holdings of Delaware State College v. Ricks, 449 U.S.
250 (1980) and Chardon v. Fernandez, 454 U.S. 6 (1981), a
complainant under the ERA must file the complaint within 30 days
of an alleged discriminatory act if the employer's notice
concerning that act was sufficiently "final and unequivocal" in
form. In English, the employer sent a written
disciplinary notice that the
[PAGE 7]
complainant was temporarily reassigned to another position,
during which time she could bid on other available positions, and
that she would be laid off if she did not succeed in securing a
new permanent position. 858 F.2d at 959-960. The Court found
that the notice was final and unequivocal because the means to
avoid the consequences of the disciplinary notice (bid on a new
permanent position) was "unrelated to its revocation or
reexamination by the employer." Id. at 962.
When Kropp told Thomas that he would not promote her to
senior technician, he said it was because she did not have enough
diversified experience, lacked initiative, and was unwilling to
work overtime. T. 385, 399-403. Kropp told Thomas she needed
cross-training in LLRT to be eligible for promotion. T. 406.
Kropp later justified the decision to reassign Thomas to the LLRT
section in part because it "dovetailed very nicely with [Thomas']
desire for promotion and . . . afforded her the opportunity that
she needed to get cross trained." T. 410. Here, the decision
about the requested promotion to senior technician was not "final
and unequivocal," as English requires, because Kropp
implied that additional cross-training could make up for Thomas'
purported lack of diversified experience and ultimately qualify
her for promotion. Under the English analysis, the cross-
training to which Thomas was assigned meant that the denial of
promotion was not so final that it triggered the filing of a
complaint. CompareMcCuistion v. Tennessee Valley
Authority, Case No. 89-ERA-6, Sec. Dec. and Ord., Nov. 13,
1991, slip op. at 17-18 (unsatisfactory management appraisal,
which effectively denied pay increase, sufficiently permanent to
trigger awareness of respondent's discriminatory motivation and
start 30-day period for filing complaint).
The Secretary has held that the timeliness of a claim may be
preserved under the continuing violation theory "where there is
an allegation of a course of related discriminatory conduct and
the charge is filed within thirty days of the last discriminatory
act." Garn v. Benchmark Technologies, Case No. 88-
ERA-21, Dec. and Order of Remand, Sept. 25, 1990, slip op. at 6;
Egenrieder v. Metropolitan Edison Co./G.P.U., Case No. 85-
ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4. For
guidance concerning whether alleged discriminatory acts are
sufficiently "related" to constitute a course of discriminatory
conduct, the Secretary has turned to a case under Title VII of
the Civil Rights Act of 1964, Berry v. Board of Supervisors of
L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert.denied, 479 U.S. 868 (1986). SeeMcCuistion, slip op. at 16. The Berry court
listed three factors:
(1) whether the alleged acts involve the same subject matter,
(2) whether the alleged acts are recurring or more in the nature
of isolated decisions, and (3) the degree of permanence.
715
[PAGE 8]
F.2d at 981.
In this case, denial of promotion, reassignment to the LLRT
section, and suspension of test certifications involved a common
subject matter: obtaining cross-training in LLRT testing. The
remaining alleged discriminatory act, assignment to PC training,
was dissimilar in subject matter, nonrecurring, and permanent.
I find that the assignment to PC training was not a continuing
violation and therefore that the complaint was untimely as to
that allegation, since the memoranda directing the assignment
occurred outside the 30-day limitation period. [6]
The other alleged discriminatory acts that occurred outside
the 30 day period require more analysis. The denial of promotion
was a recurring act in that it was reflected in regular pay
checks that did not include the additional pay of a senior
technician. SeeBerry, 715 F.2d at 981, and
Brewster v. Barnes, 788 F.2d 985, 993 (4th Cir. 1986)
(failure to raise salary constituted continuing violation under
Equal Pay Act).
The Berry court focused to a great degree on whether
an allegedly discriminatory act that occurred outside the filing
period has
the degree of permanence which should trigger an
employee's awareness of and duty to assert his or her
rights, or which should indicate to the employee that
the continued existence of the adverse consequences of
the act is to be expected without being dependent on a
continuing intent to discriminate[.]
715 F.2d at 981, quoted in McCuistion, slip op. at
18. Applying the Berry analysis, I find that the denial
of promotion did not have such a degree of permanence as to make
Thomas aware that she still would not be promoted, absent
continuing discrimination. There is no dispute that the
promotion to senior technician could occur whenever the
supervisor deemed Thomas qualified and higher management
approved. Thus, if Kropp left, Thomas might well have been
promoted by his replacement since she obtained the needed cross-
training and broader experience Kropp said she lacked. I find
that Thomas has established under the continuing violation theory
that her complaint was timely as to denial of promotion to senior
technician. [7]
In contrast, Thomas' assignment to the LLRT section appeared
permanent since the memorandum announcing it did not mention any
possibility of her return to Section 11 testing (or Trouy's
return to LLRT). See CX 14. As Thomas testified, in the
engineering department, prior cross-training assignments had been
temporary and accomplished informally without reassigning the
employee to a new position. T. 294, 644. In this case, however,
Thomas was officially reassigned to a different position. Also,
the memorandum announcing the reassignment indicated that it was
[PAGE 9]
done not only to give Thomas and Trouy broader experience, but
also to provide "coverage" to APS should additional personnel
leave. Thus, Thomas was on notice that her reassignment to LLRT
was not the kind of temporary, informal cross-training that the
engineering department had previously used. I find that under
the English and Berry criteria, the notice
of reassignment to LLRT was sufficiently permanent to trigger the
filing period, and therefore that the complaint was untimely as to
the LLRT assignment. [8]
3. Liability.
To make a prima facie case, the complainant in a
whistleblower case must show that she engaged in protected
activity, that she was subjected to adverse action, and that
respondent was aware of the protected activity when it took the
adverse action. Complainant must also raise the inference that
the protected activity was the likely reason for the adverse
action. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 8.
Thomas engaged in protected activity when she informed her
supervisors about concerns that the PC was unreliable for
tracking valve testing, questioned them about the use of the
acceptance date for tracking valve tests, met with Kropp's
supervisor concerning Kropp's statement that ST packages should
be thrown out, and raised with her superiors the issue of using
non-approved criteria for an LLRT test. These internal safety
complaints to management are protected activity under the
whistleblower provision in the ERA. Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984);
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th
Cir. 1985), cert. denied, 478 U.S. 1011 (1986); but
see, Brown & Root, Inc. v. Donovan, 747 F.2d
1029 (5th Cir. 1984).
Thomas also engaged in protected conduct when she spoke with
an NRC inspector concerning the use of the acceptance date for
tracking valve testing and persisted on the valve testing problem
that ultimately led to filing an LER with the NRC. Seesupra at 5-6; Kansas Gas & Elec., 780 F.2d at 1510-
1513 (protection afforded during all stages of participation in
order to maintain integrity of administrative process in its
entirety); Poulos, slip op. at 6 (preliminary steps in
proceeding that could expose employer wrongdoing are protected
activity under analogous whistleblower provision of Clean Air
Act).
Complainant established adverse action in the denial of
promotion to senior test technician and suspension of test
certifications, which required her to undergo a demeaning
recertification process. SeegenerallyEnglish
v. Whitfield, 858 F.2d at 963 (retaliatory harassment claim is
cognizable under the ERA), Pogue v. U.S. Dept. of the Navy,
Case No. 87-ERA-21,
[PAGE 10]
Final Dec. and Order, May 10, 1990, slip op. at 51 (transfer to
less desirable job constitutes adverse action), rev'd on other
grounds, Pogue v. U.S. Dep't of Labor, 940 F.2d 1287
(9th Cir. 1991), and Scerbo v. Consolidated Edison Co. of New
York, Case No. 89-CAA-2, Dec. and Order, Nov. 13, 1992, slop
op. at 5-6 (id.). [9]
APS was aware of Thomas' protected activities when it took
the adverse actions. Kropp knew of Thomas' concerns about using
the acceptance date and the PC for valve test tracking before he
denied the requested promotion and suspended her test
certifications. Moreover, Thomas established that Kropp
reasonably suspected that she had complained to the NRC about the
acceptance date issue, because Kropp admitted that he knew the
NRC inspector was examining the same issue. In addition, Weber
was aware that Thomas questioned the use of non-approved test
acceptance criteria just before her test certifications were
suspended.
In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
motivation for the adverse action. About one year elapsed
between the time Kropp learned of Thomas' safety concerns
regarding use of the acceptance review date and the PC for test
tracking (Autumn 1986), and the denial of promotion (September
1987). APS suspended Thomas' test certifications three weeks
after she made internal complaints about using non-approved
acceptance criteria. Thus, Thomas introduced evidence sufficient
to raise an inference that her protected activities motivated
the adverse actions against her. SeeGoldstein v.
Ebasco Constructors, Inc., Case No. 86-ERA-36, Sec. Dec.,
Apr. 7, 1992, slip op. at 11-12, reversed on other groundssubnom.Ebasco Constructors, Inc. v.
Martin, No. 92-4567 (5th Cir. Feb. 19, 1993) (causation
established where seven or eight months elapsed between protected
activity and adverse action); see alsoCouty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989) (temporal proximity
sufficient as a matter of law to establish final element in a
prima facie case). Thus, I find that Thomas made a prima facie
case that APS violated the ERA when it denied her promotion and
suspended her test certifications.
Once Complainant established a prima facie case, the burden
shifted to Respondent to articulate legitimate, nondiscriminatory
reasons for the adverse action. Dartey, slip op. at 8.
APS met this burden. Kropp stated that he did not promote Thomas
to senior technician because she needed broader experience,
additional cross-training in LLRT testing, and more initiative to
qualify. T. 400-402. Kropp justified withdrawing all of Thomas'
test certifications because he believed that she expressed a lack
[PAGE 11]
of confidence in performing LLRT tests, and stated all of that
the tests were similar to the one on which she experienced
difficulty. T. 414-416.
Complainant had the ultimate burden of persuading that the
legitimate reasons articulated by APS were a pretext for
discrimination, either by showing that the unlawful reason more
likely motivated APS or by showing that the proffered explanation
is unworthy of credence. Dartey, slip op. at 8. At all
times, Thomas had burden of showing that the real reason for the
adverse action was discriminatory. Pillow v. Bechtel
Construction, Inc., Case No. 87-ERA-35, Dec. and Order of
Rem., July 19, 1993, slip op. at 14.
a. Denial of promotion to Senior Test Technician.
Kropp testified that he denied Thomas' request for promotion
to senior technician because she supposedly lacked sufficiently
broad experience, especially in field testing, as well as
initiative and willingness to work overtime. But Kropp admitted
that in 1987 there were no occasions for Thomas to work overtime
and therefore willingness to work overtime was not a factor in
the promotion decision. T. 400. And Thomas' 1985, 1986, and
1987 performance appraisals consistently lauded her initiative
and independence of action, which Kropp said Thomas lacked in
1987. R.D. and O. at 11; CX 5, 6, and 7. Moreover, Thomas'
1986 appraisal mentioned her excellence in testing, CX 7, and
Thomas testified that she had extensive experience in testing
prior to her request for promotion. T. 642-643.
Based on Thomas' competence, Irick believed in early 1987
that she already was a senior technician and was qualified to be
an Associate Engineer, a position higher than senior technician.
Irick stated that Thomas "was the only technician on the floor
that I knew of, that had done as wide[ ] a different amount of
testing, was as proficient as she was, knew the plant as well as
she did. . . ." T. 287-288.
Weber opined that promotion to senior test technician
required six years' experience as a test technician, or even more
years if the technician lacked broad experience. T. 625. But
Thomas established that other technicians with narrower
experience and less seniority than she had been promoted to
senior technician. T. 111-112, 189-191; Ex. 1 to Complainant's
Brief. [10] Moreover, as the ALJ found, R. D. and O. at 10,
engineer Gary Irick had others consult Thomas in his absence.
Since APS ranked Complainant fifth of seventeen applicants for
the associate engineer position, she clearly was qualified to
be a senior test technician, as the ALJ found. [11] Id.
Based on all the evidence, I agree with the ALJ that the
reasons proffered by APS for denying Thomas promotion to senior
test technician were not credible. I find that Thomas has
[PAGE 12]
sustained the burden of persuading that the real reason she was
not promoted was Kropp's resentment that she engaged in protected
activities that made him look bad. I thus find that APS
discriminated against her in failing to promote her to senior
test technician. [12]
b. Suspension of LLRT test certifications.
Whether it was the fault of the assigned mechanics or of
Thomas, there is no dispute that Thomas had some difficulty
in completing the CLO-6 test and required assistance on
September 26, 1988. As a result, Weber initially recommended
that Thomas not perform tests by herself until she satisfactorily
demonstrated her proficiency on the test at issue, CLO-6. RX 15.
However, Weber's supervisor, Kropp, immediately suspended Thomas'
certifications for all of the LLRT tests pending resolution of
the incident. CX 32 (Kropp memorandum of 9-29-88). In a
final report issued after Kropp had suspended all of the
certifications, Weber recommended that Thomas be required to
recertify on all of the LLRT tests allegedly because she had
expressed a lack of confidence in performing tests CLO-1
(electrical), CLO-4, CLO-5, and CLO-6. RX 16. Thomas denied
expressing a lack of confidence concerning the tests. T. 666,
690, 692.
Kropp testified that he required Thomas to recertify on all
of the tests because the other tests were so similar to the CLO-6
test that presumably she would have difficulty performing them.
T. 414-415. Kropp testified that he also relied on Weber's
report that Thomas was not confident about her ability to do all
the tests. T. 414.
The ALJ credited Thomas' testimony that she never expressed
a lack of confidence on the tests. R. D. and O. at 13. I find
no basis in the record to overturn his judgment of the witnesses'
credibility. Spencer v. Hatfield Electric Co., Case No.
86-ERA-33, Final Dec. and Order, Oct. 24, 1988, slip op. at 3-4.
Indeed, I find it highly suspect that Kropp did not himself
interview Thomas about the incident, but rather relied solely
upon Weber's report of Thomas' views. In addition, I also find
it suspect that Weber changed his initial recommendation of
requiring recertification on one test to requiring
recertification on all of the tests only after his supervisor,
Kropp, had suspended certifications on all the tests.
I agree with the ALJ that it was reasonable for Kropp to
require Thomas to recertify on the CLO-6 test because she
experienced difficulty in completing that test. As for requiring
her to recertify on the other tests, however, I find that the
basis asserted by APS was a pretext for discrimination. One of
the tests on which Thomas was required to recertify, the CLO-5,
does not even use the same test panel as the CLO-6. T. 645.
[PAGE 13]
Therefore, Kropp's fear that Thomas could not adequately perform
any of the tests because on one occasion she had difficulty in
performing the CLO-6 test, is simply not credible. I find that
Thomas established pretext and demonstrated that APS withdrew the
other test certifications because of her protected activities. I
further find that the required recertification process, which was
unique to Thomas, T. 415, was humiliating to her. T. 132, 135.
4. Relief
In the event that a respondent is found to have violated the
ERA, "the Secretary shall order the person who committed such
violation to (i) take affirmative action to abate the violation,
and (ii) reinstate the complainant to his former position
together with the compensation (including back pay), terms,
conditions, and privileges of his employment . . . ." 42 U.S.C.
§ 5851(b)(2)(B). See generallyWells v. Kansas
Gas & Elec. Co., Case No. 85-ERA-0072, Sec'y Final Dec.and
Ord., Mar. 21, 1991, slip op. at 17. In addition, "the Secretary
may order such person to provide compensatory damages to the
complainant" and shall assess costs and expenses, including
attorney's fees, reasonably incurred in bringing the complaint.
Id.; DeFord v. Secretary of Labor, 700 F.2d 281,
288-289, 291 (6th Cir. 1983).
a. Back pay.
To abate the violation, APS shall promote Thomas to senior
test technician, retroactive to October 1, 1987. APS shall
correct Thomas' personnel records to show the October 1, 1987
promotion.
The ALJ ordered the parties to attempt to agree on the
appropriate pay level for Thomas as a senior test technician, and
to determine the additional amount of pay Thomas would have
earned since October 1, 1987. The parties have not indicated any
agreement. The record contains only Thomas' estimate that she is
entitled to $6,500 in back pay to compensate her at the pay rate
for senior test technician from May 1987 until the hearing in
March 1989. See T. 112-113, 180-181.
APS shall establish and effectuate the correct pay rate for
Thomas as a senior test technician as of the date of compliance
with this order. APS shall pay Thomas back pay from October 1,
1987 until the date of compliance by subtracting the amount of
pay Thomas received from the amount of pay she should have
received as a senior test technician. Interest shall be
calculated as outlined at p. 29.
b. Compensatory damages.
APS moved to strike the discussion concerning compensatory
damages in Thomas' brief on the ground that it is an extra-record
submission. Motion to Strike Exhibit 1 and Discussion Concerning
Alleged 'Compensatory Damages' from Complainant's Brief. In the
brief, Thomas assigned specific dollar amounts to the elements of
[PAGE 14]
mental and physical anguish about which she testified at the
hearing. See, e.g., T. 132, 135 (feeling
humiliated when her LLRT test certifications were suspended). In
view of Thomas' testimony about the humiliation she felt, I deny
this motion to strike. [13]
Where a violation has been found, the ERA permits the award
of compensatory damages in addition to back pay. [14] 42 U.S.C.
§ 5851(b)(2)(B); 29 C.F.R. §24.6(b)(2) (1992).
DeFord v. Secretary of Labor, 700 F.2d 281, 288 (6th Cir.
1983); English, 858 F.2d at 964. Compensatory damages may
be awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. DeFord, 700 F.2d at 283;
Webb v. City of Chester, Ill., 813 F.2d 824, 836-
837 and nn. 3,4 (7th Cir. 1987).
The ALJ found the "evidence insufficient in this case to
recommend" an award of compensatory damages. R.D. and O. at 15.
Such awards may be supported by the circumstances of the case and
testimony about physical or mental consequences of retaliatory
action. Lederhaus v. Donald Paschen, etal., Case No. 91-ERA-13, Final Dec. and Order, Jan. 13,
1993, slip op. at 10, and cases there cited. The testimony of
medical or psychiatric experts is not necessary, but it can
strengthen a Complainant's case for entitlement to compensatory
damages. Busche v. Burkee, 649 F.2d 509, 519 n.12 (7th
Cir.), cert.denied, 454 U.S. 897 (1981).
While I find that Thomas' testimony was sufficient to
establish entitlement to compensatory damages, the demonstrated
humiliation concerning the withdrawal of her test certifications
does not justify the full amount of damages she seeks for it,
$5,000. Thomas was not discharged and, although she was forced
to undergo a demeaning recertification process, by the time of
the hearing she had successfully recertified on nearly all the
tests. I find that Thomas is entitled to ,000 as compensatory
damages for her humiliation. Compare, Lederhausen, slip
op. at 11-14, and McCuistion, slip op. at 18-22
(compensatory damages of $10,000 for depression, behavior changes, and monetary
difficulties resulting from discriminatory discharge);
Johnson, et al. v. Old Dominion Security, Case Nos. 86-
CAA-3, et seq., Sec. Dec., May 29, 1991, slip op. at 25-28
(compensatory damages of $2500 for each of three discharged
Complainants who had sustained prolonged exposure to chemicals
that caused flu-like symptoms, skin irritation, and in one case
gland enlargement); Blackburn v. Metric Constructors,
Inc., Case No. 86-ERA-4, Final Order on Comp. Damages, Aug.
16, 1993, slip op. at 4-5 (compensatory damages of $5000 for
depression and other effects of discharge).
ORDER
Respondent APS is ordered to:
1. Promote Complainant to Senior Test Technician,
[PAGE 15]
retroactive to October 1, 1987, and correct Complainant's
personnel records to so reflect.
2. Pay Complainant back pay from October 1, 1987 through the
date of compliance with this order, calculated pursuant to the
discussion at p. 26, supra, with interest thereon computed
in accordance with 26 U.S.C. § 6621 (1988).
3. Pay Complainant ,000 in compensation for humiliation
suffered as the result of Respondent's discriminatory treatment
concerning recertification on LLRT tests.
4. Pay to Complainant's counsel the costs and expenses
involved in bringing this complaint plus a reasonable attorney's
fee. The costs involved in submitting pleadings or documents
that have not been accepted as part of the record should not be
included.
Counsel for Complainant is permitted a period of 20 days in
which to submit to the Secretary any petition for costs, expenses
and fees incurred in bringing this complaint. Respondent
thereafter may respond to any petition within 20 days of its
receipt.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] "Section 11" refers to a portion of the code of the American
Society of Mechanical Engineers, which is incorporated in APS'
license to operate the Palo Verde plant.
[2] "LLRT" stands for local leak rate testing.
[3] Thomas later applied for an associate engineer opening and
was ranked fifth out of 17 candidates. T. 384. She initially
alleged that the failure to promote her to associate engineer was
a discriminatory act, but dropped that allegation at the hearing.
T. 180. Complainant introduced evidence concerning Kropp's
treatment of her absenteeism when he rated her qualifications for
the Associate Engineer position and contends that he rated her
lower than another employee with a substantially similar record
of absenteeism.
[4] Section 2902(b) of the Energy Policy Act of 1992, Pub. L.
No. 102-486, 106 Stat. 2776, amended the time period for filing a
complaint to 180 days for claims filed on or after the date of
its enactment, October 24, 1992. See Section 1902(i) of Pub. L.
102-486. Thomas filed her complaint in 1988.
[5] Reference is to "Respondent's Post-Hearing Brief on
Exceptions to ALJ's Recommended Decision."
[6] I note that evidence of discriminatory actions antedating
the filing period but not found to be continuing violations
nevertheless may constitute relevant background evidence.
"Evidence of past practices may illuminate . . . present patterns
of behavior." Malhotra v. Cotter & Co., 885 F.2d 1305,
1310 (7th Cir. 1989), quoted in McCuistion, slip
op. at 18.
[7] The Ninth Circuit, whose decisions are controlling in this
case, also recognizes that a finite event such as the failure to
promote may constitute a continuing violation when the
discriminatory policy against promotion continues until the
filing of the complaint. Williams v. Owens-Illinois,
Inc., 665 F.2d 918, 924 (9th Cir.), cert.denied, 459 U.S. 971 (1982).
[8] Respondent raises another timeliness issue, contending
(Respondent's Brief at 14) that the Department of Labor violated
its own regulations and deprived APS of due process of law when
the ALJ issued the R.D. and O. outside the 20-day time limit of
29 C.F.R. § 24.6(a) (1989) and the Secretary did not issue a
final decision within 90 days of the receipt of the complaint, as
provided by 29 C.F.R. § 24.6(b). The ERA provides no
consequences, however, for failure to meet the short decisional
deadlines. The time limits are directory, and not
jurisdictional. Poulos v. Ambassador Fuel Oil Co., Case
No. 86-CAA-1, Dec. and Order of Rem., Apr. 27, 1987, slip op. at
12. SeealsoRoadway Express, Inc. v. Dole,
929 F.2d 1060, 1066 (5th Cir. 1991) (case under analogous
employee protection provision of the Surface Transportation
Assistance Act) and Brock v. Pierce County, 476
U.S. 253, 259 and n.6 (1986) (Comprehensive Training and
Employment Act). Therefore, APS' due process rights have not
been violated in this case.
[9] The ALJ also discussed two memoranda from APS managers that
he found were not "aimed at Thomas specifically, but which could
be interpreted as discouraging free contact with the NRC." R. D.
and O. at 13. The ALJ ordered Respondent to issue corrective
memoranda. R. D. and O. at 16.
The first memorandum, issued April 11, 1988, arguably
occurred outside the 30 day filing limit. Even assuming that the
memorandum was still in effect during the 30 day period prior to
the filing of the complaint, and thus possibly could be
considered as a continuing violation, the memorandum did not
constitute adverse action against Thomas. The memorandum was not
addressed specifically to her, but rather to all engineering
department personnel. See CX 18. Thomas received the
memorandum in her mailbox, as did the other department members.
T. 149. Thomas did not state that the memorandum prevented her
from contacting the NRC. Rather, she testified that even after
the memorandum was issued, she raised a safety issue with the
NRC. T. 127; see CX 13 concerning a November 1988 contact
with NRC. Thus, there was no evidence that the memorandum was
adverse to Thomas.
The second memorandum, distributed to employees other than
Thomas, was issued after Thomas filed this complaint. See
CX 17, dated January 18, 1989. Again, Thomas did not testify
that the second memorandum deterred her from contacting the NRC.
Since Thomas did not show that either memorandum affected her
adversely, she did not establish a prima facie case that issuing
the memoranda violated the ERA.
[10] The hearing in this case closed on March 2, 1989. Thomas
attached as Exhibit 1 to her Brief before the Secretary a print-
out dated September 1989 indicating that employee Larry Trouy was
a senior test technician. Thomas cited Exhibit 1 as additional
evidence that APS did not have a uniform requirement of six years
of technician experience to be promoted to senior test
technician.
APS moved to strike the exhibit on the ground that 29 C.F.R.
§ 18.54(a) and (c) provide that the record is closed at the
conclusion of the hearing, absent a showing that new and material
evidence became available which was not available prior to the
close of the hearing.
Prior to the hearing, Thomas sought the personnel records of
Larry Trouy. See subpoenas to APS Custodian of Records
dated February 3 and February 17, 1989. APS did not produce the
requested records. See Respondent's Motion for a
Protective Order or an Order to Quash the Custodian of Records
Subpoena issued February 3, 1989, filed on February 13, 1989, and
APS' Motion to Quash Subpoena Directed to Custodian of Records
dated February 17, 1989. See also T. 16-17.
In view of Complainant's pre-hearing requests for
Mr. Trouy's personnel records and the fact that APS failed to
produce them, I find that Exhibit 1 was not available to Thomas
prior to the close of the hearing and became available since the
hearing. Accordingly, I will admit Exhibit 1, which is made a
part of the record in this case.
[11] At the hearing, Thomas dropped the allegation that the
failure to promote her to associate engineer was discriminatory.
T. 180. She introduced evidence demonstrating, however, that in
rating the applicants for that position, Kropp treated her
absenteeism record more negatively than the similar record of
another candidate. Compare RX 5 (Thomas rating) with CX 41
(rating of the selected applicant). Kropp admitted under cross
examination that he treated the "minus sign" for Thomas'
absenteeism as disqualifying her, whereas he did not treat the
selected candidate's minus sign the same way. T. 425-428. I
agree with the ALJ's finding, R. D. and O. at 11, that Kropp's
treatment of Thomas' absenteeism showed discrimination against
her.
[12] The meeting at which Thomas requested and was denied a
recommendation for promotion to senior technician occurred in
September or October 1987. T. 193-194. The ALJ's finding that
Thomas should have been promoted no later than October 1987, R.D.
and O. at 15, is therefore reasonable.
[13] I grant "Respondent's Motion to Strike Complainant's
Unauthorized Pleading Submitted in May 1990." Under the rules
governing hearings before ALJs, 18 C.F.R. Part 24, and the
Briefing Order in this case, the last authorized pleading was
Respondent's Post-Hearing Reply brief, submitted in January 1990.
Complainant's March 1990 letter-brief will remain in the file,
but it is not a part of the official record and I have not relied
upon it in reaching this decision. The letter-brief discusses
the admissibility of "Exhibit 1," which I have accepted into the
record, see n.9, supra, and contains additional
argument.
In deciding this case, I also have not considered two other
post-briefing submissions, Complainant's January 14, 1993 letter,
and Respondent's February 22, 1993 responsive letter.
[14] Thomas sought $5,000 for the humiliation she suffered when
APS stripped all of her LLRT certifications. Comp. Br. at 42.
She also sought compensatory damages because of her transfer to
the LLRT section. Since she did not complain timely about the
transfer, she is not entitled to compensatory damages concerning
its effect on her.
