Bivens v. Louisiana Power & Light, 89-ERA-30 (Sec'y June 4, 1991)

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USDOL/OALJ Reporter
Bivens v. Louisiana Power &, 89-ERA-30 (Sec'y June 4, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: June 4, 1991
CASE NO. 89-ERA-30

IN THE MATTER OF

KENNITH J. BIVENS,¹
COMPLAINANT,

LOUISIANA POWER & LIGHT,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

Before me for review is the Recommended Order of Dismissal (R.O.) of the Administrative Law Judge (ALJ) in this case under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The ALJ addressed two Motions to Dismiss filed by Respondent prior to the scheduled hearing. The ALJ found that the first motion, seeking dismissal of the complaint on the grounds of mootness and timeliness, was without merit. He recommends granting the second motion to dismiss, however, based on the holding in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), that internal complaints are not protected activity under the ERA. Accordingly, he cancelled the hearing and recommended the complaint be dismissed. Both parties have filed briefs before the Secretary.

BACKGROUND AND FACTS

Complainant began working for Respondent (LP & L) on July 1, 1987, and was classified as an "Engineer-Nuclear." In March 1989 Complainant received his performance appraisal for 1988, and he submitted a rebuttal to his supervisor on March 8. On April 1, 1989, Complainant was reassigned to a position as an engineer technician, at the same salary. Complainant has not worked for

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Respondent since commencing sick leave on June 23, 1989, and has been on long term disability since December 21, 1989.

Complainant filed a complaint with the Wage and Hour Division of the United States Department of Labor on April 5, 1989. The complaint alleges that Respondent harassed, demoted and transferred Complainant from his position as Engineer-Nuclear at LP & L's Waterford 3 nuclear plant, in retaliation for safety concerns raised in the March 8, 1989, written rebuttal to his supervisor.²

DISCUSSION

In its first Motion to Dismiss, Respondent urges dismissal of the complaint on the grounds of mootness and untimeliness. Respondent argues that Complainant has lost no wages and has not been employed by Respondent since he went on long term disability, and consequently, that none of the remedies available under the ERA are appropriate and the case should be dismissed as moot. The ALJ concluded that this contention was without merit, because 29 C.F.R. § 24.6(a)(2) provides for compensatory damages, and the Complainant would be entitled to assert a claim for such damages if his complaint is successful. Moreover, the ALJ found that the challenged transfer occurred on March 31, 1989, thus rendering the claim timely filed on April 5, 1989. I agree with the ALJ's denial of this motion.

Pursuant to 42 U.S.C. § 5851(b),(2),(R), once discrimination is found in violation of 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, and the Secretary may order such person to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

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If Complainant establishes a violation of the Act, the Secretary would then address the appropriate remedial relief under the pertinent provisions of the Act and implementing regulations. See 42 U.S.C. § 5851 (b) (2) (B); 29 C.F.R. § 24.6 (a)(2); see also Deford v. Tennessee Valley Authority, Case No. 81-ERA-1, Sec. Order on Remand, April 30, 1984, slip op. at 2-4. Additionally, the argument that the April 5, 1989, complaint was untimely is without merit since the alleged violations occurred after March 8, 1989, and within the thirty day filing period. See 42 U.S.C. § 5851 (b)(1); 29 C.F.R. § 24.3(b). Accordingly, the first motion to dismiss is denied.

Respondent's Second Motion to Dismiss relies on the decision in Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), that internal complaints are not covered under the ERA. Respondent argues that Complainant's internal complaints of March 8, 1989, are not protected under the ERA, and that the case must be dismissed. The ALJ granted this motion concluding that because the complaint arises within the jurisdiction of the United States Court of Appeals for the Fifth Circuit, he must follow the court's decision in Brown and Root. ALJ's R.D. & O at 2-3.

The Secretary has held consistently that reporting safety and qualify problems internally to one's employer is a protected activity under the ERA and other environmental statues enumerated in 29 C.F.R. § 24.1. See Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4, Sec. Dec. and Order Remand Order, June 21, 1988, slip op. at 3-4; Francis v. Bogan, Inc., Case No. 86-ERA-8, Sec. Final Dec. and Order, April 1, 1988, slip op. at 2-3; Willy v. The Coastal Corporation, 85-CAA-11, Sec. Dec. and Order of Remand, June 4, 1987, slip op. at 1-4, 8; Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Dec. and Order of Remand, July 30, 1987, slip op. at 10-12. For the reasons discussed in Willy, slip op. at 3-8, I am persuaded that the appropriate resolution of this issue is set forth in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), and Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986), rather than Brown & Root.³ I therefore respectfully decline to reject this complaint because it alleges an internal complaint. See Lopez v. West Texas Utilities, Case No. 86-ERA-25, Sec. Dec., July 26, 1988, slip op. at 5-6.⁴

Accordingly, I do not accept the ALJ's recommendation to dismiss this case. I deny the Second Motion to Dismiss the complaint and remand for further consideration in accordance with Willy.

[ENDNOTES]

¹Complainant's middle initial has been corrected from L to J in the caption.

²This was Complainant's second unfavorable performance appraisal from Respondent. Upon receiving his 1988 appraisal, Complainant submitted rebuttals to his supervisors entitled "Rebuttal of 1988 Salaried Employee Performance Appraisal and Development Report" and "Supplement to Rebuttal of 1988 Salaried Employee Performance Appraisal and Development Report." See Attachments 5 & 6 to LP & L's First Motion to Dismiss.

³ I note that the ALJ did not address the Secretary's decision in Willy v. The Coastal Corporation, Case No. 85-CAA-1, Sec. Dec. and Order of Remand, June 4, 1987, on the issue of internal complaints. The Secretary, subject to judicial review, interprets the whistleblower statutes and implementing regulations. It is incumbent on ALJ's, therefore, to familiarize themselves with Secretarial decisions which are controlling to assure uniformity in like cases and therefore fairness to litigants. See Cowan v. Bechtel Construction Co., Case No. 87-ERA-29, Sec. Dec. and Order of Remand, August 9, 1989, slip op. at 2, fn. 2. Willy, Lopez and Cowan all are cases arising within the jurisdiction of the Fifth Circuit.

⁴See generally S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278 (5th Cir.) (where administrative agency respectfully declined to follow Fifth Circuit view that, conflicted with agency's view court "assume[d] without deciding that [agency] is free to decline to follow decisions of the courts of appeals with which it disagrees, even in cases arising in those circuits.")

⁵ By this order I make no findings as to the merits of this complaint, nor should any be inferred. As always, Complainant bears the burden of establishing the necessary elements of his case. See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec. and Final Order, April 25, 1983, slip op. at 6-9.