DATE: July 16, 1993
CASE NO. 89-ERA-31
IN THE MATTER OF
FARRELL MARK BAILEY,
COMPLAINANT,
v.
SYSTEM ENERGY RESOURCES, INC.,
RESPONDENT.
CASE NO. 89-ERA-32
IN THE MATTER OF
VERONICA LIVELY,
COMPLAINANT,
v.
SYSTEM ENERGY RESOURCES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under Section 210 of the Energy Reorganization Act of
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1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ
recommends that the complaint filed in this case be dismissed
because Complainants did not establish a causal connection
between the revocation of their site access privileges and
protected activity known to Respondent.
Upon review of the record in this case, I agree with the
ALJ's recommendation to dismiss the complaint. The record and
applicable law fully support the ALJ's conclusion that
Complainants failed to establish a prima facie case of
discriminatory action under the ERA.
BACKGROUND
Complainants Farrell Bailey and Veronica Lively were junior
decon technicians employed by Nuclear Support Services, Inc.
(NSS) beginning March 6, 1989, to provide decontamination support
at Grand Gulf Nuclear Station, owned and operated by Respondent.
R.D. and O. at 3-4. After decontamination, the tools would be
inspected by Richard Vandenakker, Respondent's senior health
physicist, who would "frisk" and "smear" them to make sure they
were decontaminated. Id. at 4; Employer's Exhibit (EX) 6
at 21-22.
The schedule for the decon group was a twelve hour shift,
initially consisting of two hours in the deconning room and two
hours in the break area. The schedule was changed in early April
1989 in order to help Mr. Vandenakker whose workload was backing
up. It was revised so that one decon technician would work with
Vandenakker smearing and frisking for one hour, and would then
work inside the decon room for two hours, with a one hour break.
The others would work in the decon room for three hours, with a
one hour break. Complainants were unhappy with the schedule
change and told their supervisor they did not want to smear and
frisk. R.D. and O. at 5.
During the evening of April 11, 1989, Stanley Clark and
Complainants were working on a deconning project. After it was
completed, Complainants proceeded to lie down on the floor across
a steep grating that was used to step up onto the operating
machine. Mr. Vandenakker then appeared and asked where
Complainants were. Mr. Clark showed him and they both observed
Complainants and testified that there was no question in their
minds that Complainants were asleep. Id. at 7-8.
Late that evening, Respondent's manager of plant maintenance
learned that Complainants allegedly had been found sleeping. He
directed that they be prevented from re-entering the plant and
revoked their unescorted access privileges. The NSS site
director decided to terminate Complainants' employment early the
next day. Ms. Lively first contacted the Nuclear Regulatory
Commission (NRC) at 5:30 P.M. on April 12 to inquire about decon
technicians smearing and frisking tools. Complainants were not
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told that NSS had released them until they returned to work at
7:30 P.M. that evening because neither had a telephone.
Id. at 9-10.
Complainants contended in their complaint that the alleged
sleeping incident was an excuse to get rid of them because they
were raising safety concerns. ALJ Exhibit (Ex.) 1, Tab 1. The
ALJ first noted that Complainant argued they had engaged in two
forms of protected activity, their internal complaints to NSS and
Respondent's supervisory personnel regarding smearing and
frisking and Ms. Lively's telephone call to the NRC about this
matter. The ALJ reasoned that, inasmuch as this case arises in
the Fifth Circuit, Brown & Root, Inc. v. Donovan,
747 F.2d 1029 (5th Cir. 1984) required concluding that the
internal complaints were not protected activity. Even assuming
internal complaints to be protected activity, the ALJ concluded
that Complainants' expressed concerns were not safety related.
Concerning Ms. Lively's telephone call to the NRC, the ALJ noted
that it was made after Respondent decided to revoke Complainants'
site clearance and, therefore, could not have motivated
Respondent to take the adverse action. Accordingly, he concluded
that Complainants failed to establish a prima facie case of
discrimination. Even if a prima facie case had been established,
the ALJ found that the sleeping incident satisfied Respondent's
burden to prove that it had a legitimate basis for taking action
adverse to Complainants. R. D. and O. at 11-12.
DISCUSSION
To establish a prima facie case of a discriminatory action,
the complainant must show that he or she engaged in protected
activity of which the respondent was aware and that the
respondent took adverse action. The complainant must also
present evidence sufficient to at least raise the inference that
protected activity was the likely motive for the adverse action.
Young v. CBI Services, Inc., Case No. 88-ERA-0008, Sec.
Dec., Dec. 8, 1992, slip op. at 6; Dartey v. Zack Co.,
Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8. If the
complainant establishes a prima facie case, the respondent may
rebut by producing evidence that the adverse action was motivated
by legitimate, nondiscriminatory reasons. Id. at 8.
With respect to the alleged internal complaints, the persons
to whom Complainants allege having raised safety concerns
uniformly denied being told of these concerns. See EX 6
at 24; EX 7 at 15; Transcript (T.) at 279, 336, 359. Instead,
they testified that Complainants' concerns were that the schedule
change meant they would have less break time and would be doing
the work of someone who received higher wages. T. at 294-95,
313-14; EX 6 at 81; EX 7 at 13-14, 38; EX 8 at 24. This was
consistent with the testimony of Complainant Lively who stated
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that she disagreed with making the schedule to help Richard
Vandernakker do his work and because smearing and frisking [1]
was not her job. T. at 80, 89. For the foregoing reasons, I
adopt the ALJ's finding [2] that Complainants failed to prove
they were engaged in protected activity by making internal
complaints [3] about safety matters. This finding leads to the
conclusion that the Complainants did not establish a prima facie
case.
As to Ms. Lively's complaint to the NRC, I also adopt the
ALJ's finding that she failed to establish a prima facie case on
that basis. Because the telephone call, placed at 5:30 P.M. on
April 12, 1989, was made after Respondent had revoked
Complainants' site clearance late the previous evening, the
evidence cannot raise the inference that protected activity was a
motive, much less the likely motive, for the adverse action.
Young, slip op. at 6.
Finally, even if Complainants had made a prima facie case,
credible evidence supports the ALJ's finding that the adverse
action was motivated by legitimate, nondiscriminatory reasons.
Two witnesses testified that they observed Complainants sleeping,
T. at 339-40; EX 6 at 30, and Respondent's manager of plant
maintenance revoked their site clearance on that basis, T. at
241-42, as authorized by the Employee Handbook. See EX 7,
Deposition Exhibit 1. The prima facie case would, therefore have
been rebutted.
For the foregoing reasons, I conclude that Complainants have
not shown that Respondent took discriminatory adverse action
against them in violation of the ERA. Accordingly, their
complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Both Ms. Lively and her supervisor agreed that Complainants
were not asked to smear and frisk tools. T. at 156, 278.
[2] The ALJ acknowledged that many of his findings of fact and
some of his conclusions of law were adopted verbatim from
Respondent's post-hearing brief. R.D. & O. at 3, 10. While
wholesale copying of a pleading may be indicative of an
abdication of the judicial function, it is clear that in this
instance the ALJ carefully considered the adopted material,
elaborating upon it where necessary and adding a significant
amount of his own material. Under these circumstances, I
conclude that the ALJ faithfully discharged his judicial duty.
SeeS. Pac. Communications v. A. T. & T., 740 F.2d
980, 995 (D.C. Cir. 1984).
[3] While concluding that he was bound by the decision in
Brown & Root that internal complaints are not protected
activity, the ALJ noted that the Secretary has reached the
opposite conclusion. R.D. and O. at 11. SeeChavez v.
Ebasco Serv., Inc., Case No. 91-ERA-24, Sec. Dec., Nov.
16, 1992; slip op. at 4; Willy v. The Coastal Corp., Case No.
85-CAA-1, Sec. Dec., June 4, 1987, slip op. at 3. Because the evidence
supports the ALJ's conclusion that Complainants did not raise, or were
not perceived as raising internal safety complaints, the question of
whether such complaints are protected activity is, as the ALJ
reasoned, moot. See R.D. and O. at 12.
