U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: November 16, 1993
CASE NO. 89-ERA-20 [1]
IN THE MATTER OF
MICHAEL SAMODUROV,
COMPLAINANT,
v.
GENERAL PHYSICS CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and 0.) 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 that Complainant did not establish a prima
facie case of a violation of the ERA and recommended dismissal.
I reach the same conclusion as the ALJ through a somewhat
different legal analysis that I explain below. I briefly state
the facts to focus the discussion.
[PAGE 2]
1. The facts
Complainant Michael Samodurov knew Robert Madden when they
worked together at a Calvert Cliffs, Maryland nuclear power plant
in the early 1980's. T. 46, 184. A few years later, Samodurov
was a "sole proprietor working as an independent contractor
through" Nuclear Energy Services Corporation (NES), which in turn
contracted to provide Samodurov's employment services to nuclear
plant owners and contractors. T. 99. Through NES, Samodurov
worked in 1988 as a supervisor of technical writers producing
in-service inspection procedures for Niagara Mohawk Power
Corporation's Nine Mile Point nuclear plant (Nine Mile) in New
York. T. 38-39. At Nine Mile, Samodurov made verbal complaints
to his Niagara Mohawk supervisor about deficiencies in the
plant's quality assurance program. T. 42-44. The work that
Samodurov supervised there led to the issuance of a licensee
event report to the Nuclear Regulatory Commission (NRC). T. 40.
During his employment at Nine Mile, Samodurov received a
phone call from his former colleague Madden, who had recognized
Samodurov at a local parade. T. 47, 184. Madden was working for
General Physics Corporation as a Staff Specialist conducting
training classes at New York Power Authority's Fitzpatrick
nuclear power plant in Oswego, New York. T. 67, 183. When
Samodurov told Madden that his contract at Nine Mile was due to
expire soon, Madden suggested that Samodurov send him a resume,
which Madden would direct to the appropriate persons at General
Physics/Oswego. T. 91, 185, 199. Madden did not have hiring
authority. T. 183-184.
Samodurov testified that during the initial phone call from
Madden on July 6, 1988, Samodurov mentioned having quality
assurance (safety) concerns about the Nine Mile power plant. T.
47-48. Madden did not recall Samodurov's making any disclosures
about quality assurance problems at Nine Mile, however. T. 185,
200. According to Samodurov, Madden told him that the General
Physics training department was looking for senior reactor
operators and reactor operators for some training billets at
Fitzpatrick. T. 48. Madden recalled that they did not discuss
specific employment opportunities at General Physics/Oswego.
Madden testified that he provided the names of two General
Physics/Oswego employees to contact about employment, including
Madden's supervisor, Larry Lukens. T. 201.
A few weeks later, Madden spoke about Samodurov with an NES
employee working at Fitzpatrick and learned that there were
rumors that Niagara Mohawk had accused Samodurov of "time sheet
discrepancies." T. 185-186.
[PAGE 3]
There is a dispute about whether Samodurov spoke with Madden
on the telephone on August 16, 1988. Samodurov introduced into
evidence his daily planner showing that he had spoken that day
with Madden, CX 5, and testified that Madden provided the names
of the two contacts at General Physics/Oswego during the alleged
August 16 conversation. T. 52-59. Madden was absolutely sure
that he did not have a phone conversation with Samodurov that
day. T. 200.
It is undisputed, however, that on August 16 Madden called
Gordon Hawks, a General Physics employee assigned to Nine Mile,
and asked if Hawks knew Samodurov. 187-188, CX 13 p. 3. When
Hawks stated that he did not know Samodurov, Madden asked him to
obtain information on the rumors about the alleged time sheet
discrepancies. T. 188, CX 13 p. 3. Hawks spoke with Dick
Shelton, Samodurov's Niagara Mohawk supervisor, who stated that
there were suspicions of time sheet problems. CX 13 p. 5. Hawks
gave that information to Madden. CX 13 p. 6; T. 188.
Madden testified that he told no one in a hiring capacity at
General Physics about the information he had received from Hawks.
T. 189-190. Since Madden anticipated that Samodurov would be
contacting Lukens about employment, Madden sought Lukens'
permission to speak with Samodurov before Lukens did. CX 12 p.
12. Madden did not reveal to Lukens the nature of the
information he wished to discuss with Samodurov. T. 189-190,
192, 203, 206.
Samodurov taped part of the September 6, 1988 telephone
conversation. T. 82-83, 190. According to a transcript, Madden
told Samodurov that it was a "no go" on employment at General
Physics' Fitzpatrick operation "until the situation has been
straightened out." CX 13 p. 2. Madden explained that since
Niagara Mohawk was a client of General Physics, it would be
"sensitive" to hire him while the time sheet allegation was
unresolved. CX 12 p. 2. Madden indicated that Samodurov should
continue to pursue contacts at the General Physics home office in
Maryland. T. 191, CX 12 p. 7.
The next day, Samodurov sent his resume to two persons at
General Physics' home office. T. 100, RX 1, 2. In cover letters,
Samodurov explained that he sought "subcontractor opportunities"
with General Physics on behalf of his own company, Nucad, Inc.
RX 1, 2.
The manager of General Physics' recruiting services
acknowledged receiving Samodurov's resume and forwarded a summary
of it to appropriate department heads for review. RX 3. She
[PAGE 4]
indicated that if General Physics did not contact Samodurov in
three or four weeks, it was "probable that General Physics did
not have an immediate or near-term need" for his services. RX 3,
T. 114.
About four weeks after sending his resume, Samodurov filed
this complaint alleging that General Physics refused to hire him
because of his protected activities at Nine Mile. RX 5. Shortly
thereafter, General Physics sent Samodurov an announcement of
available positions and asked him to send an updated resume. T.
115-116, RX 4. Samodurov promptly responded with a corrected
resume, RX 4, but he heard nothing further from General Physics.
T. 117.
2. Analysis
a. Covered employee
The ALJ found that Samodurov was not an "employee" under the
ERA's employee protection provision because he was an independent
contractor whose only connection with General Physics was its
rejection of his employment based on an unsolicited resume. R.D.
and 0. at 12. I disagree.
It is well established that the ERA covers applicants for
employment. Flanagan v. Bechtel Power Corp., et al., Case
No. 81-ERA-7, Sec. Dec., June 26, 1986, slip op. at 7, 9, and
Cowan v. Bechtel Construction, Inc., Case No. 87-ERA-29,
Dec. and Ord. of Rem., Aug. 9, 1989, slip op. at 2 (ERA covers
former employees who sought reemployment and were not hired).
See also, Chase v. Buncombe County, N.C., Case No.
85-SWD-4, Dec. and Order of Rem., Nov. 3, 1986, slip op. at 3
(under analogous employee protection provision Of Solid Waste
Disposal Act (SDWA)). A broad interpretation of "employee" is
necessary to give full effect to the purpose of the employee
protection provision, which is to encourage reporting of safety
deficiencies in the nuclear industry. SeeFaulkner v.
Olin Corp., Case No. 85-SWD-3, ALJ's Recommended Decision,
Aug. 16, 1985, slip op. at 6, 14-15, adopted in Sec. Final Ord.,
Nov. 18, 1985 (under SDWA).
Contrary to the ALJ, I do not find it significant that
Samodurov initially forwarded his resume to General Physics
without regard to a specific opening. See R.D. and 0. at 12. At
General Physics' invitation, Samodurov later sent an updated
resume in response to an announcement of openings in quality
assurance. RX 4. Based on uncontroverted evidence of the
telephone call in which Madden encouraged him to send his resume,
and the resumes he sent to the home office, Samodurov clearly was
an applicant for a position at General Physics.
[PAGE 5]
I agree with the ALJ that Samodurov sought to be hired as an
independent contractor, rather than as an employee. R.D. and 0.
at 12. I disagree, however, that contractor status places a
complainant outside the protection of the ERA. Independent
contractors may be covered employees. Faulkner, ALJ's
Recommended Dec. at 14-15; Royce v. Bechtel Power Corp.,
Case No. 83-ERA-3, ALJ's Recommended Dec. of Mar. 24, 1983, slip
op. at 3, 9, (temporary contract worker a covered employee),
aff'd, Sec. Dec. and Final Ord., July 11, 1985. See
also, McAllen v. U.S. Environmental Protection Agency,
Case No. 86-WPC-1, ALJ's Recommended Dec. and Ord., Nov. 28,
1986, slip op. at 10 (contractor covered under analogous employee
protection provision of the Water Pollution Control Act, 33
U.S.C. § 1367).
In determining whether a contractor is an employee within
the ERA's protection, the decisions examine the degree Of control
or supervision by the respondent. SeeFaulkner and
McAllen. Since General Physics did not hire Samodurov,
there is no evidence of the degree of control it would have had
over him and his work. The absence of such information in this
complaint of an alleged discriminatory refusal to hire does not
preclude a determination that Samodurov was a covered employee.
Accordingly, I find that, as an applicant for employment as a
contractor, Samodurov was a covered employee.
There is no dispute that General Physics is a covered
employer.
b. Prima facie case
To make a prima facie case, a complainant must show that he
engaged in protected activity, that the respondent subjected him
to adverse action, and that the 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.
Concerning protected activity, Samodurov expressed concern
to his supervisor, Dick Shelton, on three occasions about
deficiencies he perceived in Nine Mile's quality assurance
programs. R.D. and 0. at 3. In addition, work that Samodurov
supervised led to the issuance of a licensee event report to the
NRC. Id. at 4.
Citing the absence of a formal complaint to the NRC or
formal internal safety complaint to supervisory personnel at
Niagara Mohawk, the ALJ found that Samodurov did not "show, let
alone prove," that he engaged in activities protected under the
ERA. R.D. and 0. at 13. The ALJ requires too much for a prima
facie case, however. [2] An informal safety complaint to a
[PAGE 6]
supervisor is sufficient to establish protected activity.
See, e.g., Dysert v. Westinghouse Electric Corp.,
Case No. 86-ERA-39, Final Dec. and Order, Oct. 30, 1991, slip op.
at 1, 3 (employee's complaints to team leader protected);
Nichols v. BechtelConstruction, Inc., Case No.
87-ERA-0044, Dec. and Order of Rem., Oct. 26, 1992, slip op. at
10 (employee's verbal questioning of foreman about safety
procedures constituted protected activity), appeal
dismissed, No. 92-5176 (llth Cir. Apr. 15, 1993). I find
that Samodurov established that he engaged in protected activity
at Nine Mile.
Absent a discriminatory reason proscribed by law, an
employer is free not to hire any individual. General Physics'
failure to hire Samodurov could constitute adverse action against
him if it was based on his engaging in activity protected by the
ERA. SeeFlanagan, Cowan, and Chase
(remanding to ALJ to determine if failure to rehire former
employees was unlawful under employee protection provisions).
In a case involving an alleged racially discriminatory
refusal to hire, the Supreme Court outlined the required showing
for a prima facie case under Title VII of the Civil Rights Act of
1974:
(ii) that he applied and was qualified for a job for which
the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected and (iv) that, after his
rejection, the position remained open
and the employer continued to seek applicants from persons
of complainant's qualifications.
[PAGE 7]
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
The McDonnell Douglas framework applies as well tO
determining whether a complainant in an ERA case has established
adverse action in the failure to hire him.
Samodurov testified that Madden informed him there were
training billets for senior reactor operators and reactor
operators available at General Physics' Fitzpatrick operation.
Although Madden denied discussing particular employment
opportunities with Samodurov, T. 185, his later actions indicate
that such opportunities existed or would be available in the near
future. There would be little reason for Madden to seek Lukens'
permission to speak with Samodurov first, unless Lukens, who had
hiring authority, might be considering Samodurov for a position.
I find that Samodurov established that there were openings at
Fitzpatrick for which he was qualified and in which he expressed
an interest.
I also find that Samodurov established that he was rejected
for consideration for openings in the training department at
General Physics/Oswego. Madden's tape recorded "no go" statement
told Samodurov that it would be pointless to pursue any such
opportunities at that time because of the unresolved time sheet
issue. [3]
Samodurov did not introduce any evidence that after he
received the "no go" message, General Physics continued to seek
applicants with similar qualifications for training billet, at
Oswego. [4] In the absence of evidence that General Physics
sought, received applications from, or hired any similarly
qualified persons for Oswego training billets, Samodurov did not
establish that General physics took an adverse action against
him, See R.D. and 0. at 14. In the absence of such a
showing, Samodurov failed to establish a prima facie case under
the ERA.
Even assuming that Samodurov established adverse action, he
did not make the next required showing, that the respondent as
aware of the complainant's protected activities when it took the
adverse action. A complainant may make the required showing of
knowledge either by direct or by circumstantial evidence.
Barlik v. Tennessee Valley Authority, Case No. 88-ERA-15,
Final Dec. and Order, Apr. 7, 1993, slip op. at 3, petition
for review filed, NO. 93-3616 (6th Cir. June 4, 1993).
[PAGE 8]
Samodurov admitted that he did not inform Madden that he
"had filed any safety related complaints with the NRC or had
engaged in any other safety-related complaining involving Niagara
Mohawk." T. 88-90. Thus, there is no direct evidence that
Madden knew about Samodurov's protected activities.
Samodurov contends that to establish General Physics'
knowledge, he need not have mentioned that he raised quality
assurance concerns with his Niagara Mohawk management. Rather,
he argues that it was sufficient that he told Madden that there
were quality assurance problems at Niagara Mohawk. Comp. Br. at
26-27.
Samodurov's real argument is that Madden should have known
that he had engaged in protected activities. He relies heavily
on the fact that he told Madden both that he had quality
assurance concerns and also that the time sheet allegation was
unsubstantiated. However, two months elapsed between the time
Samodurov mentioned having concerns about Niagara Mohawk's
quality assurance program (July 6) and the time he discussed the
time sheet allegation with Madden (September 6).
According to the transcript, on September 6, Samodurov did
not bring up his safety concerns or opine that his expressing
safety concerns was the real reason for the time sheet
allegation. Rather, Samodurov stated that the allegation arose
because:
it was just a ... bookkeeping thing, and it really was a
stupid thing and somebody had a little personal interest in
trying to dig up a little dirt. Something like that, just
human stuff. . . .
* * *
if the cat's out of the bag already, I'd rather come clean
with you folks and tell you exactly what's going on and why,
and who was involved, and let you folks do a judgment call
. . .
[PAGE 9]
CX 12 p. 5, 8. I understand Samodurov to say that a personal
vendetta about a minor bookkeeping problem was behind the
allegation. Samodurov introduced no evidence that he ever "came
clean" and told Madden or any other General Physics personnel
that he suspected that the time sheet allegation arose because he
had made safety complaints.
I find that on this record, there was no reason for Madden
either to suspect or assume that Niagara Mohawk made the time
sheet allegation in retaliation for Samodurov's protected
activity. I therefore find that Samodurov did not establish
through direct or circumstantial evidence that General Physics
was aware that he had engaged in protected activities while
working at Nine Mile. See R. D. and 0. at 13. For this second
reason, Samodurov did not establish a prima facie case.
Assuming for the sake of argument that Samodurov did
establish General Physics' awareness of his protected activities,
the final element of a prima facie case is raising the inference
that the protected activity caused the adverse action.
Temporal proximity between the protected activity and the
adverse action may be sufficient to raise the inference of
causation in an ERA case. Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989); Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip
op. at 19. If General Physics' knew of Samodurov's protected
activity, it learned the information during the July 6 telephone
conversation between Samodurov and Madden. Madden informed
Samodurov two months later (on September 6) that General
Physics/Oswego would not consider him for employment while the
time sheet allegation was unresolved. Had Samodurov established
adverse action and General Physics' knowledge of his protected
activity, I would find a period of two months to be sufficiently
brief to raise the inference of causation in this case.
C. Respondent's burden of production
When a complainant establishes a prima facie case, the
burden shifts to the respondent to articulate legitimate,
nondiscriminatory reasons for the adverse action. Dartley,
slip op. at 8. Assuming that Samodurov established a prima facie
case, I find that General Physics met its burden of production
when Madden testified about his knowledge of the time sheet
allegation. Noting that Niagara Mohawk was a client of General
Physics, Madden cogently explained why it would be indelicate for
General Physics to hire Samodurov at a time when Niagara Mohawk
suspected that he had submitted incorrect time sheets. CX 12
[PAGE 10]
p. 7; T. 204-205.
d. Complainant's burden of persuation
Samodurov had the ultimate burden of persuading that the
legitimate reason articulated by General Physics was a pretext
for discrimination, either by showing that the unlawful reason
more likely motivated it or by showing that the proffered
explanation is unworthy of credence. Dartev, slip op. at
8. At all times, Samodurov had the burden of showing that the
real reason for the adverse action was discriminatory.
Thomas, slip op. at 20; St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993).
I find that Samodurov did not sustain his burden of
persuasion. His own evidence showed that Niagara Mohawk had
accused him of the time sheet irregularities, CX 4, and Madden
clearly knew about the allegation. Samodurov submitted into
evidence a document purportedly showing the lack of a basis for
the accusation, a letter dated September 16, 1988, from NES'
Senior Vice President to Niagara Mohawk. Id. There is no
evidence in the record that anyone told either Madden or General
Physics about the exonerating letter. Thus, we are left with
General Physics' knowledge of the time sheet accusation and
Samodurov's failure to inform it that NES believed the accusation
to be incorrect. It was therefore reasonable of Madden not to
help Samodurov gain employment at General Physics/ Oswego.
I find that Samodurov did not persuade that the reason
General Physics gave for not hiring him was a pretext. In
addition, I find that he did not establish that General Physics
declined to hire him because he engaged in protected activity.
Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Case No. 89-ERA-20 originally included an additional
respondent, Niagara Mohawk Power Corporation, and was
consolidated with No. 89-ERA-26, Samodurov v. Niagara Mohawk
Power Corporation. In a March 28, 1990, Final Order of
Dismissal, the Secretary dismissed Niagara Mohawk as a respondent
in the two cases. Accordingly, the caption of this case
eliminates mention of Niagara Mohawk and Case No. 89-ERA-26.
[2] The ALJ appears to recluire a complainant to provide
something other than his own testimony about internal safety
complaints to a supervisor. R.D. and O. at 13. Although
corroborating evidence would certainly be welcome, it is not
required for establishing a prima facie showing of protected
activity. See, e.g., Crosby v. Hughes Aircraft
Co., Case No. 85-TSC-2, Dec. and Order, Aug. 17, 1993, slip
op. at 23(uncorroborated testimony about verbal threat to file
suit to enforce environmental laws constituted protected activity),
petition for review filed, No. 93-70834, 9th Cir. (Oct.
15, 1993).
[3] Since Samodurov relied solely upon Madden's "no go"
statement to show that General Physics declined to hire him, I
will focus on the same facts. Samodurov does not contend that
General Physics declined to hire him for positions other than at Oswego
because of his protected activities. See Comp. Br. at 2.
[4] Contrary to Samodurov's suggestion, Comp. Findings Of
Fact and Conclusions of Law (Comp. Findings) at 29-30, it was not
General Physics' burden to establish "that no other person 'with
like qualifications' was hired as a RO [Reactor Operator for a
training billet at General Physics/Oswego]." Under McDonnell
Douglas, Samodurov had the burden to produce evidence that
such a person was hired.
