as a Radiation Monitoring Team (RMT) Leader. (CX. 14; Tr. 543) In response, the Complainant
sent an e-mail to Sun Lee in which he expressed a concern with the manner in which he had been
assigned and suggested that the RMT leader role should be filled with Senior HP technicians. (CX.
15)
At Sun Lee's suggestion, the Complainant initiated a PIF regarding his
concern over the use of Senior HP technicians as RMT leaders on January 22, 1997. (CX. 85; Tr.
163) The PIF investigation concluded that, "no changes solicited to the RMT Leader and other
ERO positions are planned to be implemented until after the May 1997 ERO Training Drills, . . . .
At this time, AREU personnel are not listed as qualified RMT Leaders in the Emergency Response
Telephone Directory." (CX. 85) The PIF was then classified as a category 4 requiring no
further follow-up. Id. Thus, the PIF investigation apparently concluded that the
Complainant did indeed need training that would be forthcoming to serve as an RMT leader, but that
he was not actively working as an RMT leader at that time. The Complainant, however, believing
that the investigation had not sufficiently addressed his concerns, researched the issue at the public
library on his own time. (Tr. 548) He discovered what, in his opinion, could be a potential violation
of the plant's licensing criteria given his appointment as an RMT leader. (Tr. 549) The Complainant
then e-mailed Sun Lee, Ed Gordon, and Craig Reiter on January 29, 1997, informed them of the
results of his private research, and requested that the issue be re-examined. (CX. 17; Tr. 550) The
Complainant testified that he did not pursue this issue further following this e-mail. (Tr. 550) Craig
Reiter, however, testified that he was asked to intervene on behalf of Joe Anderson given the
frequency with which the Complainant called after the PIF investigation was complete. (Tr. 1136)
Similarly, Sun Lee testified that he was upset with the Complainant because the Complainant
harassed Ed Gordon and Joe Anderson after the investigation of his PIF had been completed. (Tr.
193) The Respondent did implement a change in its emergency plan which made it possible for all
qualified employees to be RMT leaders rather than just HP technicians. (Tr. 1024)
In late January of 1997, the Complainant suspected that he was going to be
terminated and began carrying a tape recorder to protect himself. (Tr. 1436, 1441, 1532) The
Complainant taped two or three conversations with Sun Lee as well as his termination meeting, but
denied taping anyone without their knowledge. (Tr. 1438)
On January 30, 1997, the Complainant met with Sun Lee and Jim Dailey to
discuss his one year performance review. (Tr. 207) The Complainant's annual performance review
was signed and dated by Sun Lee on January 1, 1997. (CX. 20) Lee testified that he completed this
review in November of 1996. (Tr. 221, 275) The Complainant was rated as meeting expectations
and a note was made of his improving behaviors. (CX. 20) Sun Lee testified that the Complainant's
rating improved because he sought to give him a fresh start in 1997. (Tr. 286) Craig Reiter
acquiesced in this improved ranking as he believed that the Complainant had been restraining
himself. (Tr. 1139) In addition to discussing this annual review, Sun Lee also informed the
Complainant that he had been ranked in the bottom quartile of plant employees. (Tr. 208) The
Complainant requested clarification as to how this ranking was compiled and how it would be
utilized. (Tr. 290) Craig Reiter testified that he instructed each of his supervisors to rank their
employees based upon certain criteria and then the results were averaged. (Tr. 1141) Following this
process, the results were discussed to assure that the averages had produced no anomalies. (Tr.
1142) Using this process, four supervisors rated the Complainant, on average, as a fourth quartile
performer. (Tr. 292) Sun Lee testified that the Complainant became "enraged" and
"extremely angry" over his ranking. (Tr. 290)
Thereafter, the Complainant sent an e-mail requesting further information
regarding how his ranking was determined and how it would be used. (CX. 22) Sun Lee testified,
however, that all of this had been explained to the Complainant at the time the ranking was
delivered. (Tr. 208) The Complainant testified that he told Sun Lee at this point that he had gone
to the NRC. (Tr. 1430) Ed Gordon documented a confrontation with the Complainant on January
30, 1997, regarding the Complainant's further inquiries into the ranking system. (CX. 91; RX. 4)
According to Gordon, he explained the ranking system to the Complainant, but the Complainant
twisted his words to "make them sound derogatory and like personal attacks." (RX. 4)
Gordon concluded that he was "beginning to doubt Mr. Doody's ability to make rational
decisions in the workplace. His unwillingness to accept constructive criticism and his accusatory
demeanor do not inspire confidence. His recent actions over the E-Plan have made me doubt his
ability to base decisions on good HP judgment." Id. On March 10, 1997, the
Complainant requested another meeting to discuss the ranking system, this time with Craig Reiter.
(CX. 29)
In early February of 1997, the Complainant had a dispute with management
over his volunteer work at the NBA Jam Session held in Cleveland. The Complainant was upset
because the company was not giving him paid leave to work the event. (Tr. 1151) Craig Reiter
testified that, in accordance with company policy, the Complainant was allowed to use vacation time
to attend the event. (Tr. 1151-52)
On or about February 6, 1997, the Complainant met with Luw Myers, CEI's
Vice-President. (Tr. 1472) At this meeting, the Complainant discussed his allegations of intimidating
and harassing behavior by management in response to his raising concerns. (Tr. 1475-76) The
Complainant was particularly upset about the incorporation of his six-month performance review
into his annual review, which he understood would not be done. (Tr. 1477-78)
After this meeting, Myers expressed concerns about the Complainant's
behavior to Fran Szynal in Perry's Human Resources Department and asked her to review the
Complainant's file. (Supp. Tr. 227) Szynal subsequently conducted interviews relating to the
Complainant's file and sent a copy of the file to Perry's legal department. (Supp. Tr. 227-28; CX.
127) Based on her review and analysis of the Complainant's record at Perry, and noting the
"repeated efforts that had been made to try to correct the situation and the fact that there had
not been progress", Szynal informed Myers that she did not believe the Complainant's
situation was correctable. (Supp. Tr. 228) Szynal initially indicated that a termination decision had
been made on or about February 7, 1997, but then stated that it would be incorrect to say that a final
decision was made to terminate the Complainant at that point. (Supp. Tr. 169, 171) She explained
that the Complainant's satisfactory performance review from January 1997 presented a problem if
he was to be terminated because it gave an appearance of inconsistency. (Supp. Tr. 170; CX. 124)
Szynal noted in notes she prepared following her conversation with Myers that he had asked her
"to check with legal and give him a recommendation on what we could do to make the
problem to go away." (CX. 124; Tr. 178) Szynal's notes also quote Myers as saying,
"the end objective, however, is to make this employee go away." (CX. 124) After
consulting with Mary O'Reilly in the plant's legal department, it was decided that the Complainant
would be given a final thirty day period to correct his behavior. (Supp. Tr. 170-71, 229-30) Szynal
noted that this course of action was contrary to the recommendation of Dick Brant, who was of the
opinion that the Complainant should have been terminated immediately. (Supp. Tr. 229)
Szynal further testified that, despite his allegedly aberrant behavior, the
Complainant was never referred to the Employee Assistance Program, a program used to assist
employees and management with personal problems. (Supp. Tr. 193) Szynal testified that this
referral was not made because of concerns that a mandatory referral to counseling would further
deteriorate the employer/employee relationship. (Supp. Tr. 226)
The Complainant received a memorandum from Sun Lee dated February 14,
1997, during a meeting attended by Sun Lee and Craig Reiter. (CX. 23, 88; Tr. 1145) Referencing
a decline in his conduct, the Complainant was given thirty days to improve his behavior. The
memorandum noted four areas that required improvement: the ability to receive constructive, critical
supervisory evaluations and decisions; the ability to accept differing professional, management
decisions; unprofessional behavior/emotional control; and teamwork. (CX. 23) The memorandum
warned in conclusion that, "any single incident involving disruptive, unprofessional,
uncooperative and insubordinate conduct will result in your immediate termination of employment
with CEI. You must immediately improve your behaviors and attitude. You will be given 30 days
to make the necessary improvements." Id. The Complainant subsequently
photocopied this letter and distributed it to various personnel throughout the plant. (Tr. 1328-29,
1339-40)
Craig Reiter testified that the February 14, 1997, warning letter was prompted
by behavioral problems that had been seen in the Complainant beginning in December 1996. (Tr.
1144) Reiter stated that "all of a sudden he was going downhill as far as his behavior, both
his . . . aggression, his ability to interact with people. He was becoming very disruptive in the work
place." (Tr. 1145)
The Complainant wrote a seven page letter to Luw Myers on February 17,
1997, requesting that he take action to prevent the Complainant from being subject to further
harassment and intimidation. (CX. 24) The Complainant never received a response from Myers
regarding this letter. (Tr. 1057) Craig Reiter testified that he viewed the Complainant's letter to
Myers as a violation of the 30-day letter, noting that acceptance of management decisions had been
one of the Complainant's previous behavioral problems. (Tr. 1162) Reiter further noted that
relations within the Planning Unit deteriorated greatly after the Complainant received the February
14, 1997, letter. (Tr. 1227) In addition, Reiter testified that the Complainant's contact with the NRC
did not influence his subsequent decisions regarding the Complainant's employment. (Tr. 1218)
Likewise, Fran Szynal testified that the Complainant's raising of safety concerns was not a factor
in the decision to terminate his employment. (Supp. Tr. 230)
On March 4, 1997, the Complainant received an improvement plan by which
he was to demonstrate the progress he was making in his behavior. (Tr. 239, 552; CX. 25) The
Complainant sent two e-mails to Sun Lee on March 6, 1997, concerning his improvement plan. The
first requested clarification of the conduct in which he was prohibited from engaging. (CX. 28) The
second was a notice to Sun Lee that the Complainant had notified his co-workers that he would no
longer be joking with them so as not to be viewed as engaging in unprofessional conduct. (CX. 27)
These e-mails, particularly the second, could easily be construed as being derisive given the
relationship between the Complainant and management at the time it was written. The Complainant,
however, denied that he was making light of the company's directives. (Tr. 1484) Craig Reiter
testified that he did not see the Complainant attempting to comply with his thirty-day letter, and
described the Complainant's efforts as "malicious compliance." (Tr. 1157)
In an e-mail dated March 5, 1997, the Complainant noted that he is scheduled
to participate as an RMT leader in a training drill scheduled for May 7, 1997, and inquired whether
he would receive training for this position. (RX. 22, section 3, ex. 12)
On March 19, 1997, the Complainant was escorted to Human Resources by
Craig Reiter for a meeting. He was informed by William Kanda, a plant director, that his progress
was insufficient on his improvement plan and he was being terminated. (Tr. 575) Thereafter, the
Complainant filed the present action under the Energy Reorganization Act.
Following the initial hearing in this matter, the Complainant submitted a
Motion to Reopen Proceedings and requested that he be allowed to submit evidence that the
Respondent had falsified training records related to his RMT leader assignment. (AX. 5) In
addition, the Complainant averred that the Respondent had withheld e-mail records that were
purported to have been deleted. Id. The Complainant's Motion was granted, and the record
was reopened with respect to the issues surrounding the documentary evidence which had been
purported to have been falsified or destroyed. (AX. 11)
At the second hearing in this matter, it was revealed that Ken Weirman,
Perry's emergency plant responsible instructor, had falsified training materials that the Complainant,
along with Howard Conrad, and Robert Leib, should have received prior to becoming RMT leaders.
(Supp. Tr. 32-34; CX. 115-119) Weirman testified that he had falsified and forged these documents
on January 14 or 15 of 1997. (Supp. Tr. 34) Weirman was apparently motivated by time constraints,
testifying that he forged the signatures and falsified the documents rather than seek a waiver from
the Complainant, Conrad, and Leib, because of the time it would have taken to get the required
signatures. (Supp. Tr. 50, 91) He stated that, "I needed to get training done for a lot of people
at that time," but acknowledged that January of 1997 was not his busiest time of the year.
(Supp. Tr. 51, 53) Weirman testified that he acted alone, was not directed to falsify any document
by anyone at Perry, and no one else at Perry was aware of his actions until he admitted them. (Supp.
Tr. 57-58, 84; RX. 22) Weirman testified that April of 1998 was the first time he admitted to forging
the signatures and falsifying the documents, at which time he made a sworn statement and resigned
from the Perry Plant. (Supp. Tr. 60, 84; RX. 22)
The Complainant testified that he first learned that certain of his training
records at Perry had been falsified after he had been terminated, and that he first gave notice to Perry
of the falsification in July of 1997.
Luw Myers testified that he first learned that documents relating to the
Complainant's RMT training had been falsified and forged in April 1998. (Supp. Tr. 255-56) Upon
learning of this, an investigation was conducted which produced a report concluding that certain of
the Complainant's training records had indeed been falsified and forged. (Supp. Tr. 258; RX. 22)
Although Ken Weirman initially denied falsifying the RMT training documents, he eventually
admitted to doing so. (RX. 22) The investigation revealed that the Complainant, Howard Conrad,
and Robert Leib had not received the RMT Leader training at the time of the Complainant's
termination on March 19, 1997, but that Conrad and Leib did receive the training in April of 1997.
(RX. 22) These findings were then turned over to the NRC for further action. (Supp. Tr. 258)
Myers testified that the allegations relating to the Complainant's training records had no bearing in
the decision to terminate his employment. (Supp. Tr. 258, 261)
Ken Freeman, the training coordinator for the radiation protection section,
submitted a request that the Complainant, Howard Conrad, and Robert Leib receive RMT training
to Ken Weirman sometime after January 31, 1997. (Supp. Tr. 269; RX. 18) Freeman testified that
he had expected the training to occur sometime before April of 1997. (Supp. Tr. 271) Freeman
further testified that he had no knowledge of the falsification of the Complainant's training
documents prior to his termination. (Supp. Tr. 272)
Timothy Corbett, the supervisor of support services in the Perry training
section, testified that he was responsible for ensuring that records are turned over and properly
maintained. (Supp. Tr. 279) He said that he checked the forged documents, but did not verify the
accuracy of the signatures and had no suspicion that the documents were forged or inaccurate.
(Supp. Tr. 281)
Craig Reiter testified that the Complainant was not listed as a radiation
monitoring team leader in the 1997 emergency response telephone directory which lists the radiation
monitoring teams on active call status. (Supp. Tr. 314; RX. 13-17) Reiter further testified that he
was unaware that any of the Complainant's training records had been forged or falsified prior to his
termination, and that the Complainant's RMT leader training played no role in the decision to
terminate his employment. (Supp. Tr. 321) Likewise, Fran Szynal stated that she was unaware of
the forgery of the Complainant's name on the training documents. (Supp. Tr. 230-31)
CONCLUSIONS OF LAW:
The ERA prohibits discrimination or retaliation against employees who,
inter alia , engaged in
(A) notified his employer of an alleged violation of this chapter . . . ;
* * *
(D) commenced, caused to be commenced, or is about to commence or caused to be
commenced, a proceeding under this chapter . . . or a proceeding for the administration or
enforcement of any requirement imposed under this chapter;
* * *
(F) assisted or participated or is about to assist or participate in any manner in such a
proceeding or in any other action to carry out the purpose of this chapter or the Atomic Energy Act
of 1954, as amended [42 U.S.C. § 2011 et seq. ].
42 U.S.C. §5851(a)(1)(A)-(F).
The Complainant has alleged that the Respondent unlawfully discriminated
against him in the following ways:
(1) Sun Lee's criticism of the Complainant's team work in November of 1995 (Tr.
411);
(2) The Complainant's assignment to the HPPE unit in January of 1996 (Tr. 1417);
(3) Don Forbush's criticism of the Complainant's work output in January of 1996 (Tr. 424-
25);
(4 ) Pat Volza's criticisms of the Complainant following the February 7, 1996 meeting (Tr.
470, 478);
(5) The negative six month performance review the Complainant received in May of 1996
(CX. 9);
(6) Sun Lee's reprimand of the Complainant for using vulgar language in August of 1996 (Tr.
489-93);
(7) Sun Lee's criticism of the Complainant in August of 1996 for circulating a tool PIF e-mail
prior to getting approval from management (Tr. 535-41);
(8) The Respondent's denial of the Complainant's request for paid ABHP training in
December of 1996 (Tr. 1125-29);
(9) The Complainant's fourth quartile ranking in his January 1997 annual review;
(10) The 30 day letter the Complainant received on February 14, 1997; and,
(11) The Complainant's termination on March 19, 1997.
In the Respondent's Post-Hearing Brief, it is alleged that several of the
Complainant's allegations of discrimination or retaliation are time barred by the ERA's 180 day
statute of limitations. See 42 U.S.C. §5851 (b)(1). As the Complainant filed his
discrimination complaint on March 31, 1997, any allegations of discrimination that occurred more
than 180 days prior to this date are outside the statute of limitations. See Hill v. U.S.
Dept. of Labor , 65 F.3d 1331, 1335 (6th Cir. 1995)(the statute of limitation begins to run when
the alleged discriminatory act occurs). Thus, to the extent the Complainant's allegations concern
discriminatory or retaliatory acts that occurred prior to October 2, 1996, they are time barred as an
independent basis for an ERA claim.
Before considering the merits of the claim, it should be noted that my
jurisdiction is limited to deciding whether the Complainant was discriminated against due to
protected activity under the ERA. I cannot address whether the Respondent took adverse action
against the Complainant for reasons unrelated to protected activity under the ERA, or whether the
Respondent was acting wisely or appropriately in taking such action. The Respondent was entitled
to fire the Complainant "for good reasons, bad reasons, or no reason," so long as it was
not a discriminatory reason. Collins v. Florida Power Corp. , 91-ERA-47 (Sec'y, May 15,
1995). Thus, my inquiry must focus solely on whether the Complainant's protected activity was the
reason for the adverse action taken against him.
To establish a prima facie ERA action, the Complainant must set
forth facts sufficient to justify an inference of retaliatory discrimination due to conduct protected
under the ERA. See Bartlik v. U.S. Dept. of Labor , 73 F.3d 100, 103, n. 6 (6th
Cir. 1996), citing DeFord v. Secretary of Labor , 700 F.2d 281, 286 (6th Cir. 1983).
The respondent may then rebut the Complainant's prima facie showing by presenting
evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons.
See Kettl v. Gulf States Utils. Co. , 92-ERA-16, (Sec'y, May 31, 1995),
citing St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993). The complainant
must then establish that the employer's proffered reasons for the adverse action were merely a
pretext for retaliation. Id. "[I]t is not enough for the [Complainant] to show that a
reason given for a job action is not just, or fair, or sensible . . . [rather,] he must show that the
explanation is a 'phony reason.'" Pignato v. Am. Trans Air, Inc. , 14 F.3d 342, 349
(7th Cir. 1994). At all times, the Complainant has the burden of establishing that the real reason for
his discharge was discriminatory. Kettl v. Gulf States , 92-ERA-16.
In cases where the employer asserts a non-discriminatory reason for discharge,
however, it is not necessary to engage in an analysis of the elements of a prima facie case.
See Carroll v. Bechtel Power Corp. , 91-ERA-46, (Sec'y, Feb. 15, 1995),
aff'd sub nom. Bechtel Corp. v. U.S. Dep't of Labor , 78 F.3d 352 (8th Cir. 1996);
Kettl v. Gulf States Utils. Co. , 92-ERA-16 (Sec'y, May 31, 1995); Jackson v.
Ketchikan Pulp Co. , 93-WPC-7 (Sec'y, Mar. 4, 1996). When a respondent produces evidence
that the complainant was subjected to an adverse action for a legitimate, nondiscriminatory reason,
addressing whether the complainant presented a prima facie case is no longer useful.
See Kettl , 92-ERA-33 at 6. If a complainant cannot prevail on the ultimate
question of liability, it does not matter whether he has presented a prima facie case.
Id. Thus, in such a situation the Administrative Law Judge can make a direct inquiry into
whether a preponderance of the evidence establishes that the employer's reason is pretextual.
Jackson , 93-WPC-7 at 6, n. 1.
I note that this is not a case in which a "dual motive" analysis
should be applied. In a "dual motive" case, if the complainant proves by a
preponderance of the evidence that illegitimate reasons played a part in the employer's decision, the
employer then has the burden of demonstrating by clear and convincing evidence that it would have
taken the adverse action against the employee for a legitimate reason alone. See
Carroll v. Bechtel Power Corp. , 91-ERA-46 (Sec'y, 1995); Dysert v. U.S. Secretary
of Labor , 105 F.3d 607, 610, n. 3 (11th Cir. 1997). However, where the complainant contends
that the employer's motives were wholly retaliatory and the employer contends that its motives were
wholly legitimate, neither party is relying on a "dual motive" theory in advancing its
case. McCuistion v. Tennessee Valley Auth. , 89-ERA-6, n. 1, (Sec'y, Nov. 13, 1991). In
such a case, use of the "pretext" legal discrimination model is appropriate because it
focuses on determining the employer's true motivation rather than weighing competing motivations.
In the present case, the Complainant contends that the Respondent's motives were retaliatory, and
the Respondent contends that its motives were entirely legitimate. Thus, I find that the
"pretextual" analysis discussed above should be applied.6
In the present case, the Respondent has alleged that adverse action was taken
against the Complainant due to his continued disruptive and unprofessional conduct. If true, this
reason is a legitimate, nondiscriminatory basis for the Respondent's decision to terminate the
Complainant. Therefore, the issue remains whether the Complainant can prove, by a preponderance
of the evidence, that the action of the Respondent was retaliatory and not based upon legitimate,
nondiscriminatory reasons.
The Complainant contends that the Respondent unlawfully discriminated
against him by denying his request to attend an off-site ABHP certification class. (Tr. 1125-27) The
Complainant averred that his request was denied because the Respondent wished to hold him back
professionally. (CX. 75; Tr. 573, 1127, 1430-31) The Respondent, however, presented testimony
that the Complainant's request was denied due to the Respondent's interest in bringing the
certification course to the plant site, thereby allowing more of the plant's employees to attend the
training. (Tr. 1126) I find the evidence presented by the Complainant in this regard to be credible.
There is nothing suggesting that the Complainant had ulterior motives other than the charge itself.
There is no evidence, for example, that other employees were given paid leave to attend the off-site
training. Moreover, the Complainant was eventually granted paid leave to attend the training at his
own expense. (Tr. 1127) Therefore, I find that the Respondent has presented a legitimate,
nondiscriminatory reason for denying the Complainant's request, and there is no evidence that this
reason is pretextual.
Next, the Complainant contends that the fourth quartile ranking he received
in his January 1997 annual review meeting constitutes retaliation for raising safety concerns,
particularly his concerns regarding his assignment to the RMT leader position. The Complainant's
supervisor, Sun Lee, testified that the other plant employees were ranked and informed of their
ranking in the same manner that the Complainant was. (Tr. 218-19) Thus, it does not appear that
the Complainant was subject to disparate treatment by having his performance ranked. Moreover,
the Respondent presents ample evidence to justify the Complainant's fourth quartile ranking. Over
the previous year, the Complainant had sworn at supervisors, angrily walked out of a meeting with
supervisors, and responded hostilely when a supervisor refused to remove the six-month review
documenting this conduct from his records. (Tr. 266-67, 471, 500, 667, 1404; RX. 12) In addition,
three of the Complainant's co-workers, Michael Tullai, Allen Treat, and Marcia Balash, testified that
the Complainant was condescending, disrespectful towards his supervisor, and created a negative
work environment. (Tr. 1300, 1327-28, 1341) Given this conduct, it is not difficult to believe that
the Complainant would be one of the Respondent's lower-ranked employees. The Complainant
presents no evidence that he was ranked below poorer performing employees or that his ranking was
undeserved. Furthermore, if the Respondent was attempting to retaliate against the Complainant by
giving him a low ranking, it would not simultaneously give the Complainant an annual review in
which it was found that he "meets expectations." Finally, I note that the Complainant's
fourth quartile ranking is not necessarily inconsistent with the "meets expectations"
performance review he was given at the same time. Being ranked in the fourth quartile does not
mean that one does not meet expectations, it simply means that three quarters of the plant's
employees are ranked higher. Therefore, I find that the Respondent has presented legitimate,
nondiscriminatory reasons for ranking the Complainant in the fourth quartile of employees, and there
is no persuasive evidence that this explanation is pretextual.
The Complainant further contends that the 30 day warning letter he received
on February 14, 1997, and his termination on March 19, 1997, constitutes unlawful retaliation. The
Respondent, however, asserts that this warning letter was warranted due to a decline in the
Complainant's conduct. Similarly, the Respondent claims that the Complainant's termination was
warranted as he did not improve his conduct in accordance with this letter.
The Respondent's position is supported by the testimony of Sun Lee, who
noted "a degradation in [the Complainant's] behavior" from November through January
or early February of 1997. (Tr. 282) Likewise, Craig Reiter testified that the Complainant's behavior
"was going downhill" and that he was "becoming very disruptive in the work
place." (Tr. 1144-45) In support of this contention, the Respondent refers to the belligerent
manner in which the Complainant behaved upon being denied leave to attend the ABHP training and
upon learning of his fourth quartile ranking. (Tr. 1118-19, 290) Moreover, Ed Gordon documented
a run-in with the Complainant regarding his fourth quartile ranking. (RX. 4) Rather than presenting
himself in a professional manner, the Complainant behaved so as to cause Gordon to question the
Complainant's judgment and "to doubt [the Complainant's] ability to make rational decisions
in the workplace." (RX. 4)
The Respondent's characterization of the Complainant's behavior is further
buttressed by testimony that the Complainant began carrying a tape recorder and recording
conversations with co-workers in January of 1997. (Tr. 1436-41, 1532) Although the Complainant
did not record anyone without his or her knowledge, I find that such conduct could be reasonably
perceived as being disruptive to the workplace.
Furthermore, the Respondent contends that the Complainant did not improve
his conduct in accordance with the warning letter he was given on February 14, 1997. According to
the Respondent, the Complainant mocked the contents of the letter by photocopying it and
distributing it to co-workers. (Tr. 1328-29, 1339-40) Similarly, the Respondent contends that the
Complainant was derisive towards management in the e-mail sent on March 6, 1997, informing co-
workers that he would no longer be joking with them so as not to be viewed as engaging in
unprofessional conduct. (CX. 28) Although the Complainant denied he was making light of the
Respondent's directives, I find that the Respondent could reasonably construe this e-mail as being
derisive towards management given the tense relationship that existed between them. The
Complainant's conduct was interpreted by the Respondent as being "malicious
compliance" rather than a sincere attempt to comply with the Respondent's directives. (Tr.
1157) Moreover, there is testimony that the relations in the Complainant's work unit deteriorated at
this time. (Tr. 1227) Thus, the Respondent has set forth a legitimate, nondiscriminatory reason for
terminating the Respondent.
The Complainant theorizes that the Respondent terminated him in order to
prevent the discovery of his forged and falsified RMT leader training records. Apparently, the
Complainant argues either that the Respondent intentionally had Ken Weirman falsify the
Complainant's documents and then terminated him in order to avoid discovery, or that the
Respondent terminated the Complainant after discovering Weirman's activity so as to avoid exposure.
While the fact that such activity occurred naturally raises suspicions, upon consideration I do not find
any nexus between the falsification of the Complainant's RMT credentials and the adverse action
taken against him.
First, there is no persuasive evidence that anyone other than Ken Weirman at
the Perry plant knew of the falsification prior to the Complainant's termination. Weirman testified
that he acted alone in falsifying the Complainant's RMT credentials and told no one of his conduct
until April 1998. (Supp. Tr. 60, 84; RX. 22) Further, Luw Myers, Craig Reiter, Ken Freeman, and
Fran Szynal all testified that they had no knowledge of Weirman's actions prior to the Complainant's
termination. (Supp. Tr. 230-31, 255-56, 272, 321) This testimony is corroborated by the
Respondent's investigation report prepared by Larry Lindrose. (RX. 22) This report documents in
detail evidence that Weirman had falsified and forged the training documents of the Complainant,
Leib, and Conrad. If the Respondent was engaged in a coverup, it is unlikely that it would document
what it had tried to coverup and then turn this documentation over to the NRC.
Furthermore, I find it particularly relevant that two of the Complainant's co-
workers, Robert Leib and Howard Conrad, were also assigned to be RMT leaders and also had their
training records falsified. (RX. 22) If the Respondent terminated the Complainant in order to
coverup the falsification of his training documents, it would be logical that the Respondent would also
wish to coverup the falsification of Leib's and Conrad's training documents. Leib and Conrad,
however, were not terminated, and there is nothing to indicate that they were silenced in any way. In
fact, Leib and Conrad were given the RMT training in April of 1997, as the Complainant likely would
have been had he not been terminated. This suggests that, contrary to the Complainant's argument,
there was no rush to have the Complainant, Leib, and Conrad declared RMT leaders. Indeed, the e-
mail the Complainant sent on March 5, 1997, in which he notes that he is scheduled to participate as
an RMT leader in a training drill scheduled for May 7, 1997, and inquires whether he will get training
for this position, indicates that the Complainant had not begun acting as an RMT leader at the time
of his termination. (RX. 22, section 3, Ex. 12) Thus, the most probable conclusion that can be drawn
from the evidence is that Ken Weirman acted alone in falsely crediting the Complainant's RMT
credentials, and that this falsification had nothing to do with any adverse action taken against the
Complainant.
The Sixth Circuit addressed a similar case in American Nuclear Resources
v. U.S. Dept. of Labor , 314 F.3d 1291 (6th Cir. 1998), where a terminated employee accused of
disruptive behavior brought an ERA action. The Court held that "an employer may terminate
an employee who behaves inappropriately, even if that behavior relates to a legitimate safety
concern." Id. at 1295, citing Dunham v. Brock , 794 F.2d 1037, 1041 (5th
Cir. 1986)(holding that "An otherwise protected 'provoked employee' is not automatically
absolved from abusing his status and overstepping the bounds of conduct.") The Court then
dismissed the case after finding that the Complainant had been terminated due to interpersonal
problems rather than for raising safety concerns. American Nuclear Resources , 314 F.3d
at 1296. Likewise, in the present case there is substantial evidence that the Complainant was
terminated due to unprofessional and disruptive behavior rather than for raising safety concerns.
In his supplemental brief, the Complainant cites Kansas Gas & Elec. Co.
v. Brock , 780 F.2d 1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986) for the
holding that "an unrealistically short period of time allowed a Complainant to comply with a
management ultimatum is evidence of pretext."Kansas Gas ,
however, are quite different from the present case. In Kansas Gas , a safety inspector who
reported a safety violation was told that he had 48 hours to produce documentation verifying his
qualifications or be fired. Id. at 1508. The inspector was then terminated, and his employer
refused to rehire him despite production of the documents two weeks later. Id. On these
facts, the Court found that the 48 hour time period was a pretext for unlawful retaliation. Relying on
this holding, the Complainant refers to the thirty days he was given to improve his conduct and
asserts: "Clearly, this was not sufficient time to comply with 'mangement directives.'"
This argument, however, is patently absurd. Unlike producing documents, behaving in a professional
manner does not require a lengthy amount of time. Rather, it simply requires a willingness to
conform to required standards. At any rate, it cannot rationally be argued that thirty days is an
unrealistically short amount of time to improve one's behavior.
The Complainant further argues that his case is directly on point with
Keene v. Ebasco Constructors, Inc. , 1995-ERA-4 (ARB, Feb. 19, 1997), where an employee
was found to have been discriminated against based on his employer's unsupported explanations and
an unexplained downgrade in the employee's performance rating. In contrast to Keene ,
however, the actions the Respondent took against the Complainant are neither unsupported nor
unexplained. On the contrary, the Respondent has presented sufficient evidence to establish that the
Complainant repeatedly behaved in an unprofessional manner when dealing with management and
created a negative work environment. Likewise, as discussed above, the Complainant's ranking in
the fourth quartile of plant employees was clearly explained and justified.
The Complainant also argues that the Respondent had already decided to
terminate him at the time he was given the 30 day warning letter on February 14, 1997, rather than
the day he was formally terminated on March 19, 1997. Even if true, this argument is not particularly
relevant. Whether the Respondent wished to terminate the Complainant is not at issue. Obviously
they did, or the Complainant would not have been terminated. What is at issue is why the
Respondent wished to terminate the Complainant. To prevail in this action the Respondent must
prove that the Complainant was terminated due to activity protected under the ERA, and this the
Complainant has failed to do.
In conclusion, I find that the Respondent articulated legitimate,
nondiscriminatory reasons for taking adverse action against the Complainant. I further find the
evidence of record insufficient to establish that these reasons are pretextual or that the Complainant
was subjected to adverse action for engaging in protected activity.
RECOMMENDED ORDER
It is hereby RECOMMENDED that the complaint of Kevin R. Doody be
DISMISSED.
DANIEL J. ROKETENETZ
NOTICE : This Recommended Decision and Order will automatically become the final
order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed
with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances
Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review
must be received by the Administrative Review Board within ten business days of the date of this
Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative
Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614
(1998).
[ENDNOTES]
1
2 See 10 C.F.R. §
20.1101(b).
3
4
5
6 arguendo , that a dual motive analysis was found to be
appropriate, I find the evidence presented by the Respondent
sufficient to demonstrate by clear and convincing evidence that it
would have terminated the Complainant based on legitimate reasons
alone.
