Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y Apr. 18, 1991)

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USDOL/OALJ Reporter
Sellers v. Tennessee Valley Authority, 90-ERA-14 (Sec'y Apr. 18, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: April 18, 1991
CASE NO. 90-ERA-14

IN THE MATTER OF

JOHN R. SELLERS,
COMPLAINANT,

TENNESSEE VALLEY AUTHORITY,
DEFENDANT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the Recommended Decision and Order (R.D.& O.) of Administrative Law Judge (ALJ) Robert L. Cox, issued on September 28, 1990, in the captioned case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §5851 (1982). The ALJ recommends denial of the complaint against Tennessee Valley Authority (TVA). The ALJ concluded that Complainant failed to establish that the alleged adverse actions by TVA were in retaliation for Complainant's protected activity in ILLEGIBLE the ERA. By Order Establishing Briefing Schedule, issued on October 24, 1990, the parties were given an opportunity to file briefs in support of or in opposition to the ALJ's recommended decision. Both parties submitted briefs before the Secretary.

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BACKGROUND

The record fully supports the ALJ's comprehensive factual findings as set forth in the R.D. & O. See ALJ's R.D. & O. at 1-19. For purposes of this decision, however, I will briefly reiterate the pertinent facts. Complainant was employed by TVA as an asbestos worker at the Browns Ferry Nuclear Power Plant, under a temporary employment contract beginning February 26, 1988, and ending February 24, 1989.

On January 23, 1989, Complainant filed a complaint with the Nuclear Regulatory Commission (NRC), as a result of two incidents in early January. DX-3. Both of these incidents concerned the alleged denial by TVA supervisors of Complainant's requests to read the work plans and procedures while he was on the job.¹ See Tr. at 16-21; ALJ's R.D. & O. at 5-6, 17-18. Complainant complained to the NRC that denied access to the work procedures during working hours was a safety violation.

When Complainant's employment contract expired on February 24, 1989, it was not renewed and he was discharged. on that same date, Complainant received an adverse performance appraisal rating of "S-3, " which is below average on TVA Form 77. See CX-6; The reasons provided by TVA for not extending Complainant's employment were set forth as follows in his final performance appraisal:

Mr. Sellers will not perform a shift of work without daily step by step work instruction by his craft supervisor. He always find (sic) reasons not to perform his daily work activities without giving his supervisor a problem. He requires close supervision. He has a problem understanding work instructions and questions instructions when given work assignments. He had a problem taking instructions from dual rate on 2/8/89. He has no motivation and no desire to go out in the field with a workplan and do what the workplan calls for without a lot of problems.

CX-6; CX-7.

In a complaint filed with the Wage and Hour Division of the United States Department of Labor on March 17, 1989, Complainant asserted that TVA took adverse actions against him, including the discharge, the adverse rating and harassment by TVA supervisors, in retaliation for his complaint to the NRC. DX-9. TVA's

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position is that it did not discriminate against or harass Complainant; and that the adverse performance appraisal and discharge of Complainant were based on legitimate problems with Complainant's work performance.

DISCUSSION

Generally, in order to establish a prima facie case under the employee protection provisions implemented by 29 C.F.R. Part 24 (1990), a complainant must show that he engaged in protected activity of which the respondent was aware and that respondent took some adverse action against him. In addition, a complainant must present evidence sufficient to at least raise an inference that the protected activity was the likely motive for the adverse action. Dartey V. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983, slip op. at 5-9.

In the instant case, I find that Complainant proffered sufficient evidence to establish a prima facie case of discrimination under the ERA ² with respect to the allegations of discharge, poor performance appraisal, and harassment. Complainant has demonstrated that he engaged in protected activity under the ERA, by filing a safety complaint with the NRC, and that TVA took adverse action against him by discharging him and giving him an "S-3" performance appraisal rating. The record contains testimony sufficient to establish that TVA's general foreman, Don Nichols, who participated in the decision to discharge Complainant and signed his performance appraisal, had heard rumors that Complainant had contacted the NRC prior to the discharge. Tr. at 120, 277-278; ALJ's R.D. & O. at 20. Furthermore, considering that shortly after the NRC complaint, TVA personnel made the decision to discharge Complainant rather than renew his contract, and also gave Complainant an S-3 rating, the inference is raised that Complainant's protected conduct was the likely motivation for the adverse actions. See Couty v. U.S. Department of Labor, 886 F.2d 147, 148 (8th Cir. 1989).

Nevertheless, based on a review of the entire record in this case, I conclude that the adverse actions against Complainant were not in retaliation for his NRC complaint. Once a prima facie case is established, the burden of production shifts to the respondent to present evidence that the alleged adverse action was motivated by legitimate, nondiscriminatory reasons. If so produced, then complainant, as the party bearing the ultimate burden of persuasion of discrimination, has the opportunity to

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show that the proffered reason was not the true reason for the decisions, but a pretext. See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983, at 8-9. The record here establishes that TVA demonstrated legitimate, nondiscriminatory reasons for Complainant's discharge and adverse performance rating and all other alleged "harassment" by TVA supervisors; and that Complainant has failed to establish that the proffered reasons were pretextual.

The record establishes a history of recurring work-related problems and incidents during Complainant's one year employment contract with TVA, both before and after his complaint to the NRC. The documented incidents usually involved Complainant's argumentativeness and inability or lack of desire to perform work assignments in a timely manner without close supervision and repeated instructions. See ALJ's R.D. & O. at 17-18; DX-16. The first reported incident involved Complainant's refusal to clean up the work area and occurred on March 4, 1988, which was only Complainant's second day on the job. DX-16. On occasions before and after the NRC complaint was made, Complainant received oral reprimands and warnings from his supervisors for not performing his work assignments as instructed, and on at least one occasion, February 23, 1989, Complainant left work without authorization. Moreover, one of the specific incidents of reprimand for "insufficient productivity, loafing and wasting time," which Complainant identified as one of the attempts by TVA management to harass him, occurred on January 18, 1989, prior to his NRC complaint. Tr. at 72-74; ALJ's R.D. & O. at 18.

The evidence proffered by Respondent demonstrates legitimate, nondiscriminatory reasons for both the decision to discharge Complainant when his one year contract expired and for the S-3 performance rating. It is undisputed that Complainant had repeated incidents of failure to understand and follow his supervisors' work instructions throughout his term of employment with TVA, that Complainant would argue with TVA personnel as a result, and his productivity suffered. Additionally, TVA has shown legitimate, nondiscriminatory reasons for the various discussions and questions raised with Complainant during January and February of 1989, which the Complainant generally alleges were acts of harassment prompted by his NRC complaint. TVA has explained that the conflicts between Complainant and his supervisors were the result of attempting to find out why Complainant would not follow his supervisors' instructions and why Complainant's work was slow; and further, TVA has demonstrated that Complainant's treatment by his supervisors was

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the same before and after his complaint to the NRC. Complainant has failed to establish that TVA's proffered reasons were pretextual, and has not offered any direct evidence of discriminatory intent. Consequently, I conclude that Complainant has not carried his burden of demonstrating that he was discriminated against by TVA in retaliation for his protected conduct of filing a complaint with the NRC.

Accordingly, the complaint is DISMISSED.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The parties stipulated that the "work plan" and "work procedures" were separate documents which indicated the work to be done and provided instructions for the performance of Complainant's job.

²Although the ALJ generally alluded to the concept of a prima facie case, he made no explicit finding of whether Complainant had established a prima facie case. ALJ's R.D. & O. at 20.